Exhibit 10.44


 


Collaboration and License Agreement, dated
April 20, 2004, between Cerus Corporation and MedImmune, Inc.


 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange Act of 1934, as amended.


 

















 


Table of Contents


 


	
  1.

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  “Additional Antigen(s)”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.2

  	
  “Affiliate”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.3

  	
  “Approval”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.4

  	
  “Cerus Core Technology”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.5

  	
  “Cerus Development”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.6
  

  	
  “Cerus
  Know-How”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.7

  	
  “Cerus Material(s)”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.8

  	
  “Cerus
  Patent(s)”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.9

  	
  “Control” or “Controlled”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.10

  	
  “Derivative”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.11

  	
  “Drug Approval Application”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.12

  	
  “EMEA”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.13

  	
  “EphA2”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.14

  	
  “EphA2 Indication”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.15

  	
  “EphA2
  Vaccine”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.16

  	
  “FDA”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.17

  	
  “Field”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.18

  	
  “First Commercial Sale”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.19

  	
  “Formulation Technology”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.20

  	
  “IND”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.21

  	
  “FPI”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.22

  	
  “JC”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.23

  	
  “Joint Inventions”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.24

  	
  “Joint
  Patents”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.25

  	
  “Know-How”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.26

  	
  “Koseisho”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.27

  	
  “Licensed Territory”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.28

  	
  “Material(s)”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.29

  	
  “MedImmune Development”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.30

  	
  “MedImmune Know-How”

  	
   

  



 


i












 








 


	
   

  	
  1.31

  	
  “MedImmune Patents”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.32

  	
  “Net Sales”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.33

  	
  “Patent
  Rights”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.34

  	
  “Phase I Clinical Trial”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.35

  	
  “Phase II Clinical Trial”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.36

  	
  “Phase III Clinical Trial”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.37

  	
  “Product”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.38

  	
  “Proprietary Antigen”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.39

  	
  “Public Domain Antigen”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.40

  	
  “Regulatory Approval”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.41

  	
  “Regulatory Authority”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.42

  	
  “Research
  Plan”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.43

  	
  “Research Funding”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.44

  	
  “Research
  Term”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.45

  	
  “Royalty
  Bearing Product”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.46

  	
  “Royalty Period”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.47

  	
  “Service”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.48

  	
  “Sublicensee”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.49

  	
  “Third Party(ies)”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.50

  	
  “Valid Patent Claim”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  TRANSFER
  OF CERUS KNOW-HOW AND MATERIALS, AND RESEARCH

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Transfer of Know-How and Materials

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2

  	
  Technical
  Advice

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3

  	
  Research
  Funding

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4

  	
  Diligence During Research Term

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.5

  	
  Availability of Additional Antigens

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.6

  	
  Records

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.7

  	
  Reporting

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.8

  	
  Visitation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.9

  	
  Joint
  Committee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.10

  	
  Further Bioengineering Support

  	
   

  



 


ii

















 


	
  3.

  	
  LICENSE
  GRANTS; DILIGENCE; EXCLUSIVITY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Grant to MedImmune

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Sublicensing by MedImmune

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  License
  to Cerus

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4

  	
  Diligence

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.5

  	
  Reports to Cerus for Products

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.6

  	
  Decisions on Commercialization and
  Marketing

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.7

  	
  Reports to Cerus on MedImmune Developments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.8

  	
  Exclusivity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.9

  	
  Retained
  Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  UPFRONT AND DEVELOPMENT MILESTONE PAYMENTS 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Upfront
  Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2

  	
  Development Milestone Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3

  	
  Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  ROYALTIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Royalty Rates on Royalty Bearing Products

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.2

  	
  Reduction of Royalties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.3

  	
  Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.4

  	
  Record
  Keeping

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.5

  	
  Reporting by MedImmune on Royalties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.6

  	
  Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.7

  	
  Tax Withholding

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.8

  	
  Single Royalty

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  COMMERCIAL MILESTONES 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Commercial Milestone Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  STOCK PURCHASE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Timing of Purchase

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  CONFIDENTIALITY

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Confidentiality Information; Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.2

  	
  Exceptions

  	
   

  



 


iii

















 


	
   

  	
  8.3

  	
  Permitted Disclosure of Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.4

  	
  Permitted Disclosure of Confidential
  Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.5

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.6

  	
  Publicity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  PATENTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Prosecution of Cerus Patents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.2

  	
  MedImmune Review and Comment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.3

  	
  Maintenance of Cerus Patents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.4

  	
  Patents on MedImmune Developments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.5

  	
  Disclosure of Patent Applications

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.6

  	
  Maintenance of Patents on MedImmune
  Developments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.7

  	
  Patents on Jointly Owned Inventions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  INFRINGEMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Infringement of Cerus Patents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2

  	
  Recovery Allocation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.3

  	
  Cooperation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.4

  	
  Infringement of Joint Patents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.5

  	
  Third Party Actions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  OWNERSHIP OF INVENTIONS AND MATERIALS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  MedImmune Inventions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.2

  	
  Cerus Inventions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.3

  	
  Joint Inventions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.4

  	
  Disclosure and Cooperation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.5

  	
  Ownership of Materials

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  REPRESENTATIONS, WARRANTIES AND COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Mutual

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.2

  	
  Cerus Representations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.3

  	
  Disclaimer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.4

  	
  Additional Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  By MedImmune

  	
   

  



 


iv

















 


	
   

  	
  13.2

  	
  By Cerus

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.3

  	
  Defined Terms

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.4

  	
  Defense

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.5

  	
  Limitation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.6

  	
  Settlement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.7

  	
  Notice

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.8

  	
  Permission by Indemnifying Party

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  ASSIGNMENT; SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.1

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.2

  	
  Successors

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  TERM AND TERMINATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.1

  	
  Term

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.2

  	
  Termination by MedImmune

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.3

  	
  Termination for Material Breach

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.4

  	
  Termination for Insolvency

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.5

  	
  Sale of Inventory

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.6

  	
  Licenses

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.7

  	
  Right of Offset

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.8

  	
  Return of Materials; Cessation of Product
  Sales

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.9

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.10

  	
  Accrued Rights and Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  16.1

  	
  Force Majeure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.2

  	
  Relationship

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.3

  	
  Arbitration

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.4

  	
  Entire Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.5

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.6

  	
  Headings

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.7

  	
  Waiver

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.8

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.9

  	
  Counterparts

  	
   

  



 


v

















 


	
   

  	
  16.10

  	
  Plural and Singular; Masculine and Feminine

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.11

  	
  Dollars

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.12

  	
  Section 365(n) of the Bankruptcy Code

  	
   

  



 


END OF TOC - DO NOT DELETE THIS PARAGRAPH!


 


vi

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


COLLABORATION AND
LICENSE AGREEMENT


 


This Collaboration And License Agreement (this
“Agreement”) is dated as of April  20,
2004 (the “Effective Date”) by and between Cerus Corporation,
a Delaware corporation, having offices at 2411 Stanwell Drive, Concord, CA
94520 (“Cerus”), and MedImmune, Inc., a
Delaware corporation, having offices at One MedImmune Way, Gaithersburg, MD
20878 (“MedImmune”).


 


Whereas, MedImmune desires to collaborate with
and obtain from Cerus an exclusive worldwide right and license to certain
patent rights, know-how and materials controlled by Cerus for use in developing
and commercializing certain vaccine products; and


 


Whereas, Cerus desires to collaborate with
MedImmune on such research and development activities and to grant such rights
to MedImmune, on the terms and conditions of this Agreement.


 


Now, Therefore, in consideration of the mutual
promises and other good and valuable consideration, the parties agree as
follows:


 


1.                                      Definitions


 


The terms used
in this Agreement have the following meaning:


 


1.1                               “Additional Antigen(s)”  means one or more of
(a) a Public Domain Antigen, and (b) a Proprietary Antigen; in each of (a) and
(b), that is useful to enhance or broaden the immune response against EphA2,
and that is determined to be available for inclusion in Products in accordance
with Section 2.5.


 


1.2                               “Affiliate”
means, with respect to a person or entity, any other person or entity
controlling or controlled by or under common control with such person or
entity. For purposes of this definition, the term “control” means possession of
the power to direct or cause the direction of the management and policies
whether through the ownership of voting securities, by contract or otherwise.  In the case of a corporation, the direct or
indirect ownership of more than fifty percent (50%) of its outstanding voting
shares shall in any event be deemed to confer control, it being understood that
the direct or indirect ownership of a lesser percentage of such shares shall
not necessarily preclude the existence of control.


 


1.3                               “Approval”  means, in the United States, receipt from the
FDA of approval to market a Product; and in countries other than the United
States, approval from the applicable Regulatory Authority in a given country or
countries to market a Product in such country or countries, including receipt
of pricing and reimbursement approval, where applicable.


 


1.4                               “Cerus Core Technology” shall mean: (a) technology and inventions [***];  b)
technology and inventions [***]; and (c) technology and inventions [***];


 


1

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


and (d) technology and
inventions directed to [***] of any of (a), (b) or (c) of this Section
1.4.


 


1.5                               “Cerus Development” means Cerus Patents that [***], that is
owned by Cerus and that result from an invention created or made in the course
of the parties’ performance under the Research Plan.


 


1.6                               “Cerus Know-How” means (i) Know-How owned by or
licensed to Cerus as of the Effective Date, and (ii) Know-How directed to Cerus
Core Technology owned by Cerus or, subject to Section 3.1(c), licensed to
Cerus in each case after the Effective Date and prior to the commencement of
the first Phase III Clinical Trial of the Product, and if licensed to Cerus
after the Effective Date, only if the terms of such license do not prevent the
grant of a license or sublicense to MedImmune pursuant to this Agreement, in
each of (i) and (ii) that is necessary or useful for the research, development,
manufacture or use of Product in the Field. Cerus Know-How excludes the items
set forth on Appendix A.  Cerus Know-How
does not include Know-How [***].


 


1.7                               “Cerus Material(s)” means (i) Material(s) owned by or
licensed to Cerus as of the Effective Date, and (ii) Material(s) directed to
Cerus Core Technology owned by Cerus or, subject to Section 3.1(c),
licensed to Cerus in each case [***] of the Product, and if licensed to Cerus [***],
only if the terms of such license do not prevent the grant of a license or
sublicense to MedImmune pursuant to this Agreement, in each of (i) and (ii)
that is necessary or useful for the 
research, development, manufacture or use of Product in the Field.  Cerus Materials will include, without
limitation, the Materials listed on Appendix G to this Agreement and other
Materials to be provided by Cerus, as set forth in the Research Plan.  Cerus Materials excludes the items set forth
on Appendix A.  Cerus Materials does not
include Material that [***] or that [***].


 


1.8                               “Cerus Patent(s)” means the (i) Patent Rights owned by
or licensed to Cerus as of the Effective Date, and (ii) Patent Rights directed
to Cerus Core Technology owned by Cerus or, subject to Section 3.1(c),
licensed to Cerus in each case after the Effective Date, and if licensed to Cerus
after the Effective Date, only if the terms of such license do not prevent the
grant of a license or sublicense to MedImmune pursuant to this Agreement, in
each of (i) and (ii) that is necessary or useful for the research, development,
manufacture or use of Product in the Field. 
Cerus Patents include the patent applications and patents of Appendix
B.  Cerus Patents excludes the items set
forth on Appendix A.  Cerus Patents do
not include Patent Rights claiming [***] or a [***].


 


1.9                               “Control” or “Controlled” means, with respect to any (a)
material, technology, item of information, method, data or other know-how, or
(b) intellectual property right, either ownership thereof or possession (other
than by ownership) of the ability to grant to the other party access and/or a
license as provided herein under such item or right, in each of (a) and (b)
without violating the terms of any agreement or, other arrangement with any
Third Party.


 


2

















 


[***] = Certain confidential information
contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2
of the Securities and Exchange act of 1934, as amended.


 


1.10                        “Derivative”  means (i) a modified form of a given
polypeptide or other antigen in
which amino acid residue substitutions and/or deletions have been made (a
“Modification”), and/or (ii) fragments of a given polypeptide or other antigen or of a Modification, in
either case which produces an immune response against the antigen that was
modified or fragmented.


 


1.11                        “Drug Approval Application” means an application for Regulatory  Approval required before
commercial sale or use of a Product in a regulatory jurisdiction.


 


1.12                        “EMEA”  means the European Agency for the Evaluation of
Medicinal Products, or any successor agency thereto.


 


1.13                        “EphA2”  means [***] and/or a Derivative thereof and/or a
polynucleotide expressing any of the foregoing.


 


1.14                        “EphA2 Indication” means [***] that,
according to [***] the Product.  MedImmune shall provide notice to Cerus [***].  An EphA2 Indication may include, by way of
example, [***].


 


1.15                        “EphA2 Vaccine”
means [***]. 
An EphA2 Vaccine may comprise either (a) [***]; (b) [***];
or (c) [***].


 


1.16                        “FDA” means the United
States Food and Drug Administration (or a successor thereto).


 


1.17                        “Field” means the
treatment and/or prevention of diseases and/or disorders in humans.


 


1.18                        “First Commercial Sale” means, in each country, the first sale of a
Product to a Third Party by MedImmune or any of its Affiliates or Sublicensees.


 


1.19                        “Formulation Technology”  means Know-How,
Materials and Patent Rights, in each case that (i) is owned by [***],
(ii) results from research, development or manufacture of Product, (iii) is
used in formulating Product (including for stabilization and


 


3

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


delivery of Product), and (iv)
is developed [***] for Product.  Formulation Technology does not include Know-How, Patent Rights
or Material [***].


 


1.20                        “IND” means an
Investigational New Drug Application filed with the FDA or any successor
thereto.


 


1.21                        “FPI”  means that the first patient has been enrolled in a
given clinical trial of Product.


 


1.22                        “JC”  has the meaning of Section 2.9.


 


1.23                        “Joint Inventions”  has the meaning of Section
11.3.


 


1.24                        “Joint Patents”  means Patent Rights jointly owned by
the parties that claim Joint Inventions.


 


1.25                        “Know-How” means
information and data (including, but not limited to, formulae, procedures,
processes, protocols, techniques and results of experimentation and testing).


 


1.26                        “Koseisho”  means the Japanese Ministry of Health and
Welfare, or any successor agency thereto.


 


1.27                        “Licensed Territory” means all countries of the world.


 


1.28                        “Material(s)”
means bacterial cell lines, cell banks, polynucleotides, antibodies, transgenic
animals, reagents, vectors, plasmids, cell lines and constructs and any other physical,
chemical or biological material.


 


1.29                        “MedImmune Development” means MedImmune Know-How,
MedImmune Patents, and Formulation Technology.


 


1.30                        “MedImmune Know-How” means Know-How owned by MedImmune that is developed
by or on behalf of MedImmune during the Research Term as a result of the
research, development or manufacture of Product, which Know-How is directed to [***].  For the avoidance of doubt, MedImmune
Know-How does not include Know-How [***].


 


1.31                        “MedImmune Patents”  means Patent Rights owned by
MedImmune that claim an invention created or made during the Research Term, as
a result of the research, development,


 


4

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


or manufacture of Product which
invention is directed to [***]. 
For the avoidance of doubt, MedImmune Patents does not include Patent
Rights claiming inventions [***].


 


1.32                        “Net Sales” means,
with respect to any Royalty Bearing Product, the gross amount invoiced or
otherwise received on account of sales, or other disposition, of Royalty
Bearing Product by MedImmune or any of its Affiliates or Sublicensees to Third
Parties, less the following to the extent included in the invoice price:


 


(a)                                  actual
credits, allowances, discounts and rebates to, and chargebacks from the account
of, such Third Parties for Royalty Bearing Product and rebates to Federal,
State or local governments or healthcare or health management organizations for
Royalty Bearing Product;


 


(b)                                  actual
freight and insurance costs incurred in transporting such Royalty Bearing
Product to such Third Parties;


 


(c)                                  cash,
quantity and trade discounts actually granted to such Third Parties;


 


(d)                                  actual
sales and use taxes and taxes, or governmental charges incurred in connection
with the exportation or importation of such Royalty Bearing Product, in each
case, imposed solely upon the sale of goods to the Third Parties; and


 


(e)                                  write-off
of actual bad debts calculated in accordance with Generally Accepted Accounting
Principles.


 


Sales of
Products by MedImmune to any Affiliate or Sublicensee that is a reseller
thereof shall be excluded from Net Sales, and only the subsequent sale of such
Products by the Affiliate or a Sublicensee to a Third Party shall be deemed Net
Sales hereunder.


 


In the event that units of a Royalty Bearing Product include clinically
active components that are not themselves Royalty Bearing Products (a
“Combination Product”), the Net Sales from such Combination Product, for the
purposes of determining royalty payments, shall be determined by multiplying
the Net Sales of the Combination Product (as defined in the standard Net Sales
definition), during the applicable royalty reporting period, by the fraction,
A/A+B, where A is the average sale price of the Royalty Bearing Product, when
sold separately in finished form and B is the average sale price of the other
products whose clinically active components are included in the Combination
Product when such products are sold separately.  In the event that the components of the Combination Product are
not sold separately, Net Sales for the purposes of determining royalty payments
shall be calculated by multiplying the Net Sales of the Combination Product by
the fraction of C/C+D where C is the fair market value of the


 


5

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


Royalty Bearing Product and D
is the fair market value of all other clinically active components included in
the Combination Product.  If MedImmune,
its Affiliate or Sublicensee sells a Combination Product, whether or not the
components of the Combination Product are also sold separately, MedImmune shall
in good faith make a determination of the respective fair market values of the
Royalty Bearing Product and all other clinically active components included in
the Combination Product, and shall notify Cerus of such determination and
provide Cerus with data to support such determination.  Cerus shall have the right to review such
determination and supporting data, and to notify MedImmune if it disagrees with
such determination.  If Cerus does not
agree with such determination and if the parties are unable to agree in good
faith as to such respective fair market values, then such matter shall be
settled pursuant to the provisions of Section 16.3.


 


If any Product is discounted as a result of being bundled with units of
other products (whether or not each product in such a bundle is invoiced
separately) disproportionately relative to the other products in such bundle or
is otherwise sold in any transaction (other than in connection with the supply
of Product for use in clinical trials) that is not a bona fide arms’ length
transaction involving cash consideration, such sale or other disposal shall be
(unless the parties otherwise agree) deemed to constitute a sale for cash at
the then-current average selling price for the Product for the purpose of
calculating Net Sales.


 


1.33                        “Patent Rights”
shall mean (i) unexpired letters patent (including inventor’s certificates)
which have not been held invalid or unenforceable by a court of competent
jurisdiction from which no appeal can be taken or has been taken within the
required time period, including without limitation any substitution, extension,
registration, confirmation, reissue, re-examination, renewal, supplementary
protection certificate or any like filing thereof and (ii) pending applications
for letters patent, including without limitation any provisional, converted
provisional, continued prosecution application, continuation, divisional or
continuation-in-part.


 


1.34                        “Phase I Clinical Trial” means a human clinical trial
of a Product, the principal purpose of which is a preliminary determination of
safety in healthy individuals or patients or a similar clinical study
prescribed by the Regulatory Authorities in a foreign country.


 


1.35                        “Phase II Clinical Trial” means a human clinical trial
of a Product, the principal purpose of which is a determination of safety and
efficacy in the target patient population or a similar clinical study
prescribed by the Regulatory Authorities in a foreign country.


 


1.36                        “Phase III Clinical Trial” means  a human clinical trial of a
Product on a sufficient number of subjects that is designed to establish that a
pharmaceutical product is safe and efficacious for its intended use, and to
define warnings, precautions, and adverse reactions that are associated with
such pharmaceutical product in the dosage range to be prescribed, and to
support Approval of such pharmaceutical product or label expansion of such
pharmaceutical product.


 


1.37                        “Product” means
a composition(s) or material(s) that constitutes an EphA2 Vaccine, or a
Service.


 


6

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


1.38                        “Proprietary Antigen”  means  a tumor associated antigen
or Derivative thereof, that is covered by a granted patent, or a claim of a
pending patent application that would reasonably be expected to be granted,
that is owned by or exclusively licensed to MedImmune.


 


1.39                        “Public Domain Antigen” means any tumor-associated antigen (other than
EphA2) or a Derivative thereof, or a polynucleotide encoding such tumor
associated antigen or Derivative thereof, that is useful to elicit an immune
response [***], that is not covered by granted Patent
Rights of any entity and that is not claimed by any published patent
application with subject matter that is reasonably likely to be
patentable.  To enable the parties to
make such determination, [***], and/or that [***].


 


1.40                        “Regulatory Approval”  means receipt from the
FDA, or the equivalent thereof outside of the United States, of approval to
market a Product in a given country or countries, provided that Regulatory
Approval shall exclude any pricing or reimbursement approvals required to be obtained
before marketing a Product in a given country.


 


1.41                        “Regulatory Authority” means any governmental authority, including
without limitation the FDA, EMEA or Koseisho, with responsibility for granting
any licenses or approvals or granting pricing and/or reimbursement approvals
necessary for the marketing and sale of a Product in any country.


 


1.42                        “Research Plan”
means the initial research plan as approved by the JC and to be attached hereto
as Appendix E, which may be amended from time to time by the JC.


 


1.43                        “Research Funding” shall have the meaning set forth in
Section 2.3(a) herein.


 


1.44                        “Research Term”  means the time period commencing on
the Effective Date and ending [***] thereafter, unless extended by mutual
written agreement of the parties prior to the time the initial Research Term
would otherwise expire.


 


1.45                        “Royalty Bearing Product” means a Product as to
which MedImmune is licensed under this Agreement that includes Cerus Material
or incorporates or is manufactured by use of Cerus Know-How or that in the
country where manufactured or sold infringes a Valid Patent Claim but for the
license granted by this Agreement.


 


1.46                        “Royalty
Period” means, with respect to each country and
Royalty-Bearing Product in the Licensed Territory, the longer of (a) the period
[***],


 


7

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


or (b) [***]
of any Royalty Bearing Product in such country.


 


1.47                        “Service” or “Services”
means methods or services relating to the administration or use of an EphA2
Vaccine in the Field (including [***] and administration thereof) other than
for clinical testing.


 


1.48                        “Sublicensee”
means any non-Affiliate that is granted a sublicense by MedImmune under the
licenses granted by this Agreement, in accordance with and subject to the provisions
of Section 3.2 herein.


 


1.49                        “Third Party(ies)”
means a person or entity other than Cerus or MedImmune or any of their
respective Affiliates.


 


1.50                        “Valid Patent Claim” means
either: (a) a claim of an issued and unexpired patent included within the Cerus
Patents that has not been disclaimed or abandoned or withdrawn and has not been
held unenforceable or invalid or permanently revoked by a decision of a court
or other governmental agency of competent jurisdiction, unappealable or
unappealed within the time allowed for appeal, and which has not been admitted
to be invalid or unenforceable through reissue or disclaimer or otherwise; (b)
a claim of a pending patent application included within the Cerus Patents which
claim was filed in good faith and has not been abandoned or finally disallowed
without the possibility of appeal or refiling of such application, which
application and any application to which priority is claimed for such
application, in the aggregate has not been pending for more than [***],
or (c) a claim of a pending patent application included within the Cerus
Patents, which claim was filed in good faith and has not been abandoned or
finally disallowed without the possibility of appeal or refiling of such
application, and that has been pending for more than [***], but
subsequently is issued and satisfies the criteria of subsection (a) above.


 


2.                                      Transfer of Cerus Know-How and Materials, and Research


 


2.1                               Transfer of Know-How and Materials.  Promptly following the Effective Date,
Cerus shall take substantial steps, with the assistance of MedImmune, to
identify Cerus Know-How and Cerus Materials. 
Cerus thereafter shall promptly commence the transfer to MedImmune of
such Cerus Know-How, and Cerus Materials as may be requested by MedImmune.  Promptly [***], Cerus shall similarly identify and transfer
to MedImmune, at MedImmune’s request, the Cerus Know-How and Cerus Materials
licensed to MedImmune pursuant to this Agreement.


 


2.2                               Technical Advice. 
[***], Cerus shall provide MedImmune with such
technical advice as reasonably requested by MedImmune, and practicable for
Cerus to undertake, with respect to the use of the Cerus Patents, Cerus
Know-How and Cerus Materials by MedImmune in connection with Products.  MedImmune shall provide to Cerus technical
advice


 


8

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


reasonably necessary or useful
to enable Cerus to perform its responsibilities under the Agreement and to
understand the MedImmune Developments licensed to Cerus.


 


2.3                               Research Funding. 
MedImmune agrees to provide research funding to Cerus to support
Cerus’ performance under the Research Plan. 
MedImmune will be responsible for [***] associated with the development of the
Product under the Research Plan.  For
those activities undertaken by Cerus, MedImmune will provide funding support [***]
at a rate of [***] per FTE per year (“FTE Support”).  Unless this Agreement is sooner terminated,
MedImmune shall provide funding for Cerus’ efforts under the Research Plan [***],
and the FTE Support during such [***] shall not be less than [***]
and in the [***] (such time period and amount, the
“Research Commitment”).  After the first
[***] of the Research Term, if by mutual agreement of the parties
the Research Term extends beyond the initial [***] term, the FTE rate will be adjusted to [***]
per FTE per year.  MedImmune also agrees
to reimburse Cerus for any and all external costs incurred by Cerus as set
forth in the Research Plan.  Such
payments shall be made [***] following invoice by Cerus for research
support provided during a given calendar quarter, detailing [***].  MedImmune agrees that it shall not, without
the prior written consent of Cerus, modify, amend, revise or adjust the
Research Commitment or obligations of Cerus under the Research Plan in any material
manner.  The parties understand and
agree that MedImmune shall not be obligated to [***] under this
Section 2.3 other than the Research Commitment, beyond [***]
the Research Plan or for [***], MedImmune shall be obligated to pay the
Research Commitment in each year only to the extent that Cerus provides the FTE
Support pursuant to the Research Plan.


 


2.4                               Diligence
During Research Term.
 Cerus and MedImmune each agree to
use commercially reasonable efforts to perform research in accordance with the Research
Plan.


 


2.5                               Availability
of Additional Antigens.


 


(a)                                  Public
Domain Antigens.  MedImmune may, in its
discretion, select one (1) proposed Additional Antigen that is a Public Domain
Antigen for inclusion in the Product by written notice to Cerus during the
Research Term. Any proposed Additional Antigen that is a Public Domain Antigen
shall be deemed to be available for inclusion in the Product and to be an
Additional Antigen, unless [***] Cerus notifies MedImmune in writing that:
(i) at the time Cerus receives MedImmune’s notice, Cerus is conducting
negotiations with a Third Party with respect to such Public Domain Antigen [***]
with respect to such proposed Additional Antigen; (ii) prior to receiving
MedImmune’s notice, Cerus has [***] with respect to such proposed Additional
Antigen; or (iii) Cerus notifies MedImmune in writing that Cerus disagrees in
good faith that such proposed Additional Antigen qualifies as a Public Domain
Antigen.  If any of subsections (i)
through (ii) apply, Cerus


 


9

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


shall describe to MedImmune
which condition applies (but shall not be obligated to identify the relevant
Third Party) and such proposed Additional Antigen shall not become an
Additional Antigen.  If subsection (iii)
applies, the parties shall submit the issue of whether such proposed Additional
Antigen qualifies as a Public Domain Antigen for resolution [***]
and, if necessary, arbitration pursuant to Section 16.3 below.


 


(b)                                  MedImmune
Proprietary Antigens.  MedImmune may
also, in its discretion, select one (1) proposed Additional Antigen that is a
Proprietary Antigen for inclusion in the Product by written notice to Cerus
prior to the date that is [***] (the “Proprietary Antigen Selection
Date”).  MedImmune shall, concurrently
with such written notice to Cerus, provide to Cerus information to support the
characterization of such antigen as an Additional Antigen described in Section
1.1(b).  Such proposed antigen shall be
deemed to be an Additional Antigen available for inclusion in Products unless
Cerus, within [***] after receiving such information from
MedImmune, notifies MedImmune that it disagrees in good faith that such antigen
meets the criteria for an Additional Antigen under Section 1.1(b), in which
case the issue of whether such proposed antigen meets such criteria shall be
submitted for resolution [***] and, if necessary, arbitration pursuant
to Section 16.3 below.


 


(c)                                  Limitation
as to Number.  Sections 2.5(a) and (b)
shall not be deemed to confer upon MedImmune the ability to designate more than
a total of one (1) Public Domain Antigen and one (1) Proprietary Antigen for
inclusion in Products.


 


2.6                               Records.  Cerus
agrees to maintain, and provide to MedImmune upon request, records of the
activities performed by Cerus under the Research Plan in a manner that is
useful to allow MedImmune to determine the level of FTEs allocated to the
Research Plan by Cerus for which MedImmune must provide funding under Section
2.3.


 


2.7                               Reporting.  Cerus
shall provide MedImmune with a quarterly update of research results obtained by
Cerus under the Research Plan.


 


2.8                               Visitation. 
Upon not less than [***] prior written notice, during the Research
Term, each party shall have the right to visit the premises where research is
being performed by the other party under the Research Plan.  In such case, the other party agrees to make
scientists performing research under the Research Plan reasonably available to
discuss the research and progress thereof under the Research Plan with the
visiting party.


 


2.9                               Joint Committee


 


(a)                                  The
parties hereto agree to establish a joint committee (the “JC”), which shall
consist of no fewer than four (4) permanent members, with the JC having equal
representation by each party on the JC. 
Each party may replace any or all of its representatives on the JC at
any time upon written notice to the other party. Such representatives shall
include individuals within or designated by the senior management of each
party.  JC representatives of each party
shall, individually or collectively, have expertise and/or responsibility in
business and


 


10

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


bio-pharmaceutical therapy
development or commercialization. Any member of the JC may designate a
substitute to attend and perform the functions of that member at any meeting of
the JC, and each member of the JC may invite such other non-members (subject to
the confidentiality provisions set forth in Article 8) as deemed necessary to
help explore and resolve the issues before the JC.


 


(b)                                  The
JC shall perform the following functions:


 


(i)                                    exchange
information concerning the overall strategy and timelines for the Research Plan
and the parties’ collaboration;


 


(ii)                                review
and evaluate data and progress of the activities under the Research Plan;


 


(iii)                            resolve
disputes or disagreements between the parties with respect to the Research
Plan;


 


(iv)                               ensure
open communication between the parties as relates to the Research Plan;


 


(v)                                   provide
a mechanism for the exchange of information between the parties; and


 


(vi)                               approve
an initial research plan and make amendments to the Research Plan then in
effect.


 


(c)                                  The
JC shall operate by consensus with each party’s representatives having a single
collective vote. If the JC cannot reach consensus [***] after it
has met and attempted to reach such consensus, the matter shall then be
immediately referred to the Chief Executive Officer of Cerus, or such other
person holding a similar position designated by Cerus from time to time, and a
senior officer of MedImmune designated by the Chief Executive Officer of
MedImmune, from time to time, for resolution. The executive/senior officers
shall use reasonable efforts to resolve the matter referred to them. If the
executive/senior officers cannot reach a mutually acceptable decision [***]
after the matter was referred to them, then [***] shall have the final authority to make
decisions in good faith that are in the mutual interest of parties (except as
otherwise expressly provided in this Agreement); provided, however, that such
authority shall not include [***]. 
During the Research Term, the JC shall meet in person at least
quarterly, and more frequently as the parties deem appropriate, on such dates,
and at such places and times, as the parties shall agree. Meetings of the JC
that are held in person shall alternate between the offices of the parties, or
such other place as the parties may agree. The members of the JC also may
convene or be polled or consulted from time to time by means of
telecommunications, videoconferences, electronic mail or correspondence, as
deemed necessary or appropriate and as the JC may agree.


 


11

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


(d)                                  The
JC shall exist until the termination or expiration of the Research Term.


 


(e)                                  Each
party shall be responsible for all travel and related costs and expenses for
its members and approved invitees to attend meetings of, and otherwise
participate on, the JC.


 


(f)                                    The
JC shall not have the power to amend or waive compliance with this Agreement.


 


2.10                        Further
Bioengineering Support.  (a) If MedImmune or an Affiliate desires to
[***] that is available for inclusion in Products after the
Research Term or during the Research Term to the extent not already in the
Research Plan, then MedImmune shall so notify Cerus in writing.  Within [***] after such notice, Cerus may elect to
conduct such [***] upon additional, commercially reasonable
terms and conditions provided that Cerus then has the capacity to conduct such
activities.


 


(b)                                  If
Cerus makes an election as provided in Section 2.10 (a), then the parties shall
negotiate in good faith a Research Plan for performing such bioengineering
activities and the cost and expense thereof and if the parties fail to reach
agreement with respect thereto within [***], then MedImmune shall have the right to
perform such [***] itself or through a Third Party.


 


3.                                      License Grants; Diligence; Exclusivity


 


3.1                               Grant to MedImmune.


 


(a)                                  Subject
to the terms and conditions of this Agreement, Cerus hereby grants to
MedImmune, and MedImmune hereby accepts from Cerus, a sole and exclusive
(exclusive even as to Cerus), royalty-bearing right and license for the
Licensed Territory under and to Cerus Patents, Cerus Materials and Cerus
Know-How to research, develop, make, have made, use, import, export, sell and
offer to sell Products (subject to
Section 3.1(e)) for use in the Field, provided that Cerus shall retain a
nonexclusive right under the Cerus Patents, Cerus Materials and Cerus Know-How
to perform under the Research Plan, and further provided that  such license granted to MedImmune shall be
non-exclusive as to any Additional Antigens.


 


(b)                                  Cerus
hereby grants to MedImmune a non-exclusive, worldwide, sublicensable,
royalty-free right and license under and to the Cerus Developments to research,
develop, make, have made, use, import, export, sell and offer to sell any and
all products incorporating EphA2, a
Derivative or fragment of EphA2, and that both (i)  are not
Products, and (ii) [***], or Derivatives of the foregoing, which
license shall survive termination of this Agreement.


 


12

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


(c)                                  In
the event that the license granted to MedImmune under Section 3.1(a) is a
sublicense with respect to any component of the Cerus Patents, Cerus Know-How
or Cerus
Materials licensed to Cerus after the Effective Date, and Cerus is
obligated to make a payment to a Third Party as a result of the granting of
such sublicense and/or MedImmune’s activities under such sublicense, then Cerus
shall notify MedImmune in writing thereof (including the amounts payable or to
be paid) at the time Cerus obtains such license, and MedImmune shall be
sublicensed thereunder only if, within [***] after receipt of such written notice from
Cerus, MedImmune notifies Cerus, in writing, that [***] for the
payments made to such Third Party as a result of the granting of such
sublicense or MedImmune’s activities
thereunder.


 


(d)                                  Except
as expressly set forth in this Agreement, [***] shall be responsible for paying any and
all amounts owed by [***] pursuant to an agreement between [***]
and a Third Party, [***] under this Agreement or as a result of [***]
under this Agreement.


 


(e)                                  MedImmune’s
licenses under Section 3.1(a) shall be limited [***] to a
Product containing only those Additional Antigens, if any, that were included
in the Product [***].


 


3.2                               Sublicensing
by MedImmune.


 


(a)                                  MedImmune
shall have the right to grant sublicenses under the licenses granted under
Section 3.1.  A sublicense shall not be
deemed to relieve MedImmune from the obligation to perform its obligations
under this Agreement; provided that such obligations may be performed by an
Affiliate or a Sublicensee and shall be deemed for purposes of this Agreement
to have been performed by MedImmune.


 


(b)                                  In
any such sublicense, MedImmune shall require the Sublicensee: (i) to indemnify
Cerus under the provisions of Article 13 of this Agreement, (ii) to provide
written reports to MedImmune that will permit MedImmune to comply with
MedImmune’s reporting obligations under Sections 3.5 and 5.5 of this Agreement,
(iii) to comply with Section 5.4 of this Agreement, (iv) to comply with Article
8 of this Agreement, and (v) prior to the date that is [***]
after the last patient enrolled in the first [***] completes dosing in such trial, to refrain
from making, using or selling any product that incorporates or is based on [***]
other than a Product, in each case either independently or with or through any
Third Party, outside the scope of this Agreement; provided, however, that if
this Agreement terminates other than for [***] prior to the first [***],
then Sublicensee’s obligations under this clause (v) shall survive until [***]
of such termination.  In the event that
MedImmune requests that Cerus waive the requirement of this Section 3.2(b)(v)
with respect to a Sublicensee, then Cerus shall not unreasonably refuse to
grant such a waiver. Any sublicense shall further provide that the Sublicensee
shall have no further right to sublicense unless such further sublicense
includes the requirements of this Section 3.2(b).  Each sublicense agreement shall state that Cerus is a third-party
beneficiary of


 


13

















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


the above-required
provisions.  Nothing in this Agreement
creates any obligation of Cerus to any Sublicensee.  Notwithstanding the foregoing, MedImmune will not, without the
prior written consent of Cerus,  grant a
sublicense to any party listed in Appendix F. 
From time to time, by written notice to MedImmune, Cerus will have the
right to add one or more entities to Appendix F provided that Cerus can
demonstrate that such entity is actively engaged in [***] for
expression of antigens [***] and such entity is in competition with
Cerus with respect to [***].


 


3.3                               License to Cerus.  MedImmune hereby grants to
Cerus, and Cerus hereby accepts from MedImmune, (i) a non-exclusive, worldwide,
sublicensable (subject to the following sentences of this Section 3.3) right
and license under and to the MedImmune Developments to research, develop, make,
have made, use, import, export, sell and offer to sell vaccine products based
on [***]  and (ii) subject to the terms and conditions
of this Agreement, a nonexclusive, royalty-free, right and license for the
Licensed Territory under and to the MedImmune Developments to perform its
obligations under this Agreement  The
licenses set forth in subsection (i) shall survive the term of this
Agreement.  Cerus shall not have the
right to grant sublicenses under the licenses granted in subsection (i) with
respect to products that are directed toward preventing or treating an EphA2
Indication. The licenses granted to Cerus under this Section 3.3 (i) shall be
royalty bearing with respect to (a) sales by a sublicensee of a vaccine product
that infringes Patent Rights included in MedImmune Developments and  (b) sales by Cerus of a vaccine product that
infringes Patent Rights included in MedImmune Developments and directed to
Formulation Technology; in each of the foregoing cases at a royalty rate to be
negotiated by the parties in good faith (which shall in no event exceed [***]).  If the parties do not agree
upon the foregoing royalty rate [***] after Cerus or such Third Party commences
sales of relevant products, then the royalty rate shall be determined by
binding arbitration pursuant to Section 16.3. 
Except as provided in subparagraphs (a) and (b) of this Section 3.3, the
license granted under this Section 3.3 shall be [***].  MedImmune agrees that MedImmune will not
grant a license with respect to vaccine products based on [***]  to a Third
Party under Patent Rights that are MedImmune Developments except in conjunction
with a license to a product that is owned by or licensed to MedImmune.


 


3.4                               Diligence.


 


(a)                                  MedImmune
shall use commercially reasonable efforts, consistent with the efforts it would
use with respect to an internal product of similar commercial potential, to
research, develop and commercialize at least [***] selected by MedImmune in [***]
as set forth in Section 3.4(e).  The
efforts of a Sublicensee and/or an Affiliate and/or a collaborator of MedImmune
shall be considered as efforts of MedImmune for the purposes of this Section
3.4.


 


(b)                                  If
in any calendar year, MedImmune or its Affiliate and/or a Sublicensee and/or a
collaborator of MedImmune (including work of Cerus under a Research Plan),
alone or together, has achieved any one of the following with respect to
Product, and MedImmune in such


 


14






















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


calendar year has not discontinued Product development, then MedImmune
shall be deemed to have complied with MedImmune’s obligations under
Section 3.4(a) for such calendar year:


 


(i)                                    has
[***];


 


(ii)                                [***] for a Product;


 


***         [***];


 


(iv)                               [***] with respect to Product;


 


(v)                                   [***] with respect to Product;


 


(vi)                               [***] with respect to Product;


 


(vii)                           [***] with respect to Product;


 


(viii)                       [***] for Product;


 


(ix)                              [***] for Product; 


 


(x)                                  [***]
for Product; or


 


(xi)                              [***].


 


(c)                                  Subject
to Section 3.4(d), in the event that MedImmune fails to comply with the
obligations of Section 3.4(a) with respect to any calendar year and, in
addition, has not achieved any of the milestones set forth in Sections
3.4(b)(i) through 3.4(b)(xi) during such calendar year, Cerus shall have the
right [***] to terminate this Agreement pursuant to
Section 15.3 by written notice to MedImmune [***], unless
MedImmune cures such failure prior to the expiration of [***].  If MedImmune provides to Cerus a notice that
MedImmune has decided to discontinue Product development, then MedImmune shall
be deemed to have terminated this Agreement pursuant to Section 15.2.


 


(d)                                  If
MedImmune receives a notice under Section 3.4(c), MedImmune shall have the
right to contest such notice by requesting arbitration under Section 16.3,
and if MedImmune requests such arbitration, this Agreement shall be terminated
pursuant to Section 3.4(c) only if in such arbitration there is a final
determination that MedImmune has not met MedImmune’s obligation under Section 3.4(a)
in the applicable calendar year [***], in such calendar year none of the events
of Section 3.4(b)(i) through 3.4(b)(xi) has occurred.


 


15



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


(e)                                  It
is expressly understood that MedImmune will not be obligated to perform trials
for or seek Approval for a Product [***] until MedImmune has obtained Regulatory
Approval for such Product [***]. It is further expressly understood that
MedImmune will not be required to perform trials for or seek Approval for a
Product [***] until MedImmune has obtained Regulatory
Approval for such Product [***]. 
In the event that MedImmune fails to meet its obligations under this
Section 3.4 [***], then Cerus shall have the right to
terminate MedImmune’s licenses with respect to such Product [***]
as the case may be by written notice to MedImmune in accordance with
Section 15.3.


 


3.5                               Reports to Cerus for Products.  MedImmune shall provide Cerus with a written
report with respect to its efforts to research, develop, manufacture, and commercialize
Products in each calendar year.  Except
as otherwise provided in this Agreement, in no event shall MedImmune be
required to provide any Know-How of Medimmune. 
MedImmune shall provide such reports [***].


 


3.6                               Decisions on Commercialization and Marketing.  Subject to the terms and conditions of this
Agreement, MedImmune shall have sole discretion for making all decisions
relating to the commercialization and marketing of Products.


 


3.7                               Reports to Cerus on MedImmune
Developments.  MedImmune will provide
to Cerus on a timely basis, not less frequently than quarterly, information and
data in the possession of MedImmune that are MedImmune Developments, in such
form as Cerus may reasonably request, in order to enable Cerus to effectively
exploit the licenses granted to Cerus in Section 3.3. MedImmune shall also
provide to Cerus any patent applications thereon (consistent with
Article 11), and information regarding pre-clinical and clinical adverse
events and material communications with regulatory agencies relating to the
safety of products based on [***].


 


3.8                               Exclusivity. 
Prior to the date upon which [***] is
completed, neither MedImmune nor its Affiliates shall research, develop, make,
use or sell any product that incorporates or is based on [***] other than a Product, in each case either
independently or with or through any Third Party, outside the scope of this
Agreement; provided, however, that if this Agreement terminates other than for
breach by Cerus prior to [***] for a
Product, then MedImmune’s obligations under this Section 3.8 shall survive
[***].


 


3.9                               Retained Rights. 
Cerus retains all rights under the Cerus Patents, Cerus Know-How and
Cerus Materials that are not expressly granted to MedImmune.  Without limitation, Cerus retains all rights to
practice, and to grant to Third Parties, the rights to practice, the Cerus
Patents, Cerus Know-How and Cerus Materials to produce vaccines that
incorporate or are based on [***]  and that are
engineered to express any antigen other than EphA2 or a Derivative thereof (an
“Other Antigen or Fragment”), even if such Other Antigen or Fragment is
included in an EphA2 Vaccine and is described in Section 1.15(b) or (c), provided that such
vaccine does not also express EphA2 or a Derivative thereof.


 


16



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


4.                                      UPFRONT AND
DEVELOPMENT MILESTONE
PAYMENTS.


 


4.1                               Upfront Payment. 
[***] after both parties have signed this
Agreement, MedImmune shall pay to Cerus [***] which amount shall be non-creditable and
non-refundable.


 


4.2                               Development Milestone Payments. 
MedImmune will make the following one-time payment to Cerus upon the
first achievement of the corresponding development milestones for Royalty
Bearing Product.  Such payments shall be
non-creditable and non-refundable.


 


	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  $

  	
  [***]

  	
   

  
	
  [***]*

  	
   

  	
  $

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Development Milestone Payments

  	
   

  	
  $

  	
  [***]

  	
   

  



 










* [***].


 


4.3                               Payment.  The milestone payments under Section 4.2
are due and payable [***] after the applicable milestone
occurs.  [***].


 


5.                                      ROYALTIES.


 


5.1                               Royalty Rates on Royalty Bearing Products.


 


(a)                                  Except
as provided in Section 5.1(c) and subject to Section 5.2 and 5.3,
during the Royalty Period for each country, MedImmune shall pay royalties to
Cerus for Royalty Bearing Products at the following rates:


 


(i)                                    [***] of the portion of Net Sales in a calendar year (aggregated
for all Royalty Bearing Products) up to and including [***];


 


(ii)                                [***] of the portion of Net Sales in a calendar year (aggregated
for all Royalty Bearing Products) that is in excess of [***]
up to and including [***]; and


 


(iii)                            [***] of the portion of Net Sales in a calendar year (aggregated
for all Royalty Bearing Products) that exceeds [***].


 


17



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


(b)                                  [***] is responsible for payment of royalties owed by [***]
to Third Parties, including those owed on the basis of sales made by [***],
its Affiliates and Sublicensees.


 


(c)                                  For
the avoidance of doubt, [***] is due for any Royalty Bearing Product in
any country after the end of the Royalty Period for such country and in
calculating Net Sales for determining the applicable royalty rate under
Section 5.1(a), Net Sales of Royalty Bearing Product [***]
in a country after the end of the Royalty Period for such country.


 


5.2                               Reduction of Royalties.  In the event that royalties are to be paid to
Cerus under Section 5.1, and MedImmune also owes royalties to a Third
Party in connection with a license under rights controlled by such Third Party
that are required to practice [***], then [***] of the royalties MedImmune pays to such
Third Party shall be deducted from royalties paid under Section 5.1, but
in no event shall such reduction reduce the royalties due to Cerus under Section 5.1
[***] of the applicable royalty percentages set forth in
Section 5.1.  Except as otherwise
specifically provided in this Agreement, the foregoing shall be the only
reduction in the royalties due to Cerus under Section 5.1.  MedImmune acknowledges that the Cerus
Materials and Cerus Know-How provide substantial value to the development and
commercialization of Products under this Agreement and accordingly that the
royalties due under Section 5.1 shall not be reduced [***].


 


5.3                               Services.  The
parties acknowledge that it is possible that MedImmune may exploit the licenses
granted to it under Section 3.1 by developing and commercializing tangible
Products that are sold to end users, and/or by providing Services, such as, but
not limited to, the [***] and administration thereof. MedImmune
agrees to inform Cerus [***] of the types of Products it intends to
develop and commercialize.  If
MedImmune’s development and commercialization plans include the provision of
Services, Net Sales of Royalty Bearing Products that are Services [***]
be calculated on the amount [***] of Services and [***]
used in the Service in the country where the Service is provided.  If there are no [***] in such
country then MedImmune shall make a determination of the [***]
in such country and the Net Sales of [***] shall be based on such
determination.  Cerus shall have the
right to review such determination and if the parties do not agree as to such
determination, then Cerus may have such amount determined by arbitration pursuant
to Section 16.3.


 


5.4                               Record Keeping.  MedImmune shall keep, and shall cause each of
its Affiliates and Sublicensees to keep, full and accurate books of account
containing all particulars that may be necessary for the purpose of calculating
all royalties and other amounts payable to Cerus, including without limitation,
items included in the calculation of Net Sales. 
Such books of 


 


18



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


account, together
with all necessary supporting data, shall be kept at the relevant entity’s
principal place of business, and for the [***] following the end of the calendar year to
which such books and data pertain, shall be open for inspection by an
independent certified accountant selected by Cerus and reasonably acceptable to
MedImmune upon reasonable notice during normal business hours, at Cerus’
expense, for the sole purpose of verifying royalty statements or other payments
due under this Agreement, but in no event more than once in each calendar year.
All information and data offered shall be used only for the purpose of
verifying royalties and amounts due, and shall be treated as MedImmune
Confidential Information subject to the obligations of this Agreement.  Disclosure by such accountant to Cerus shall
be limited to the information necessary to quantify any underpayment and to
identify the cause thereof, including without limitation the amount, if any,
that any such royalties or other amounts have been underpaid. In the event that
for the period inspected, MedImmune has underpaid royalties or other amounts
due under this Agreement by [***], then MedImmune shall pay the fees
charged by such auditor to Cerus for such inspection.


 


5.5                               Reporting by MedImmune on Royalties.  With each [***] payment,
MedImmune shall deliver to Cerus a full and accurate accounting of the
calculation of the royalties owing hereunder to include at least the following
information:


 


(a)                                  Quantity
of each Royalty Bearing Product sold or provided (by country) by MedImmune, its
Affiliates and Sublicensees;


 


(b)                                  Net
Sales for each Royalty Bearing Product (by country), including a detailed
reconciliation from the gross invoiced sales price to Net Sales;


 


(c)                                  The
calculation of the gross royalties (before deductions), including detail of
each Third Party royalty paid pursuant to Section 5.2 hereof, for each
Royalty Bearing Product (by country) and any deductions, offsets and credits
therefrom;


 


(d)                                  Total
royalties payable to Cerus for each Royalty Bearing Product (by country) and
the total royalties payable to Cerus for all Royalty Bearing Products (for all
countries).


 


5.6                               Payments.  In each year the
amount of royalty due shall be calculated [***] (each being the last day of an
“Accounting Period”) and shall be paid [***] following each such date to a bank
account designated by Cerus.  Every such
payment shall be supported by the accounting prescribed in Section 5.5 and
shall be made in United States currency. 
Whenever for the purpose of calculating royalties conversion from any
foreign currency shall be required, such conversion shall be at the average of
the rate of exchange (local currency per US$1) published in the Eastern Edition
of The Wall Street Journal under the caption “Currency Trading” for the last
business day of each month during the applicable Accounting Period.


 


5.7                               Tax
Withholding.  Any tax imposed
upon Cerus required to be withheld by MedImmune under the laws of any foreign
country for the account of Cerus shall be promptly paid by MedImmune for and on
behalf of Cerus to the appropriate governmental authority, and


 


19



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


MedImmune shall
furnish Cerus with proof of payment of such tax.  Any such tax actually paid on Cerus’ behalf
shall be deducted from royalty payments due Cerus. MedImmune shall reasonably
assist Cerus in connection with the making of any claim to a refund of any such
tax payment .


 


5.8                               Single
Royalty.  Only one royalty will be due and payable for
the manufacture, use and sale of Royalty Bearing Product, irrespective of the
number of Valid Patent Claims that cover the manufacture, use and sale of
Royalty Bearing Product.  Upon payment of
a royalty under this Agreement with respect to a unit of Royalty Bearing
Product, no further royalty will be due with respect to such unit of Royalty
Bearing Product.


 


6.                                      COMMERCIAL
MILESTONES.


 


6.1                               Commercial
Milestone Payments.  MedImmune shall pay to Cerus the following
milestone payments upon the occurrence of the following events with respect to
Royalty Bearing Products:


 


First time that Net Sales upon which royalties are due exceed $[***]
in a calendar year  $[***]


 


First time that Net Sales upon which royalties are due exceed $[***]
in a calendar year  $[***]


 


[***] of the foregoing commercial milestone
payments [***] the royalty payments due to Cerus
pursuant to Section 5.1 for the calendar year in which such milestone
payments become due.


 


6.2                               Payment. 
The milestone payments due to Cerus under Section 6.1 are due and
payable [***] after the applicable milestone
occurs.  Each such milestone is paid only
once.


 


7.                                      STOCK
PURCHASE.


 


7.1                               Timing
of Purchase.  Upon [***] for a
Royalty Bearing Product (the [***]), Cerus
shall have the right, upon delivery of written notice to MedImmune, to require
MEDI Ventures to purchase, and in such event MedImmune will cause MEDI Ventures
to purchase, at Cerus’ option, common stock of Cerus in accordance with the
Stock Purchase Agreement attached hereto as Appendix D,
provided, however, that MEDI Ventures shall have no obligation to purchase such
stock if this Agreement is terminated prior to the [***] under Article 15.


 


8.                                      CONFIDENTIALITY.


 


8.1                               Confidentiality
Information; Obligations.  Subject to Sections 8.2 through 8.6, during
the term of this Agreement, it is contemplated that each party will disclose to
the other party confidential information and materials which are either
controlled by the party providing 


 


20



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


such information
and materials or subject to an obligation on the providing party to maintain in
confidence (such materials and information is individually and collectively
“Confidential Information”). Each party shall have the right to refuse to
accept the other party’s Confidential Information and neither party shall
disclose to the other party any information that it is not permitted to
disclose to the other party by reason of such party’s obligations to a Third
Party.  Subject to Sections 8.2 through
8.6, each party agrees to retain the other party’s Confidential Information in
confidence, and to limit disclosure of any such Confidential Information to its
officers, directors, employees and permitted assigns.  Each party agrees to use the other party’s
Confidential Information only pursuant to the rights and licenses granted under
this Agreement, and subject to Sections 8.2 through 8.6, not to disclose or
provide any such Confidential Information to any other person or entity without
the prior written consent of the party providing such Confidential Information.
For the avoidance of doubt, Cerus Patents (until legally required publication),
Cerus Materials and Cerus Know-How will be Confidential Information of Cerus.


 


8.2                               Exceptions.  The obligations of
confidentiality and non-use of Section 8.1 will not apply to:


 


(a)                                  Confidential
Information generally known to the public prior to its disclosure hereunder; or


 


(b)                                  Confidential
Information that subsequently becomes known to the public by some means other
than a breach of this Agreement by the receiving party;


 


(c)                                  Confidential
Information that is subsequently disclosed to the receiving party by a Third
Party having a lawful right to make such disclosure and who is not under an
obligation of confidentiality to the party that disclosed the Confidential
Information to the receiving party;


 


(d)                                  Confidential
Information that is approved for release by the parties;


 


(e)                                  Confidential
Information that, as evidenced by competent written proof, was already known or
available to the receiving party or its Affiliates, other than under an
obligation of confidentiality or non-use to the other party, at the time of
disclosure to the receiving Party; or


 


(f)                                    Confidential
Information that was independently discovered or developed by the receiving
party or its Affiliates, as evidenced by their written records, without the use
of, and by personnel who had no access to, Confidential Information disclosed
to it by the other party.


 


8.3                               Permitted
Disclosure of Agreement.  Neither party shall disclose any terms or
conditions of this Agreement to any Third Party that has not been disclosed to
the public as permitted by Sections 8.3
or 8.4 without the prior consent of the other party; provided, however,
that a party may disclose the terms or conditions of this Agreement without
consent: (a) to its legal and financial advisors to the extent such disclosure is
reasonably necessary in connection with such party’s conduct of its ordinary
and customary business operations; (b) to a Third Party 


 


21



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


in connection with
or a prospective (i) equity investment in such party, (ii) merger,
consolidation, change in control or similar transaction by such party, (iii)
transfer or sale of all or substantially all of the assets of such party to
which this Agreement relates, or (iv) granting of a sublicense under or
permitted assignment of this Agreement or (c) where required by applicable
law, rule or regulation, by rules of a securities exchange, or pursuant to an
order of a court or administrative agency; provided that with respect to
Sections 8.3(a) and (b) there is an obligation of confidentiality similar
to that of this Agreement and with respect to Section 8.3(c), reasonable
steps are taken to obtain confidential treatment thereof, if available.  Following the execution of this Agreement,
the parties will agree upon the substance of information that may be used to
describe the terms and conditions of this transaction, and each party may
disclose such information, as modified by mutual written agreement of the
parties, without the consent of the other party.


 


8.4                               Permitted
Disclosure of Confidential Information.
 Each party may use and disclose
Confidential Information of the other party to the extent that such use and/or
disclosure as the case may be is:


 


(a)                                  made
in response to a valid order of a court of competent jurisdiction or other
governmental or regulatory body of competent jurisdiction; provided, however,
that such party will first have given notice to such other party and given such
other party a reasonable opportunity (to the extent reasonably practicable) to
quash such order and to obtain a protective order requiring that the
Confidential Information and documents that are the subject of such order be
held in confidence by such court or governmental or regulatory body or, if
disclosed, be used only for the purposes for which the order was issued; and
provided, further, that if a disclosure order is not quashed or a protective
order is not obtained, the Confidential Information disclosed in response to
such court or governmental order will be limited to that information which is
legally required to be disclosed in response to such court or governmental
order;


 


(b)                                  otherwise
required by law, rule or regulation; provided, however, that the disclosing
party will provide such other party with notice of such disclosure in advance
thereof to the extent practicable;


 


(c)                                  in
exercising rights granted under this Agreement, made by such party to the
regulatory authorities as required in connection with any filing of INDs, BLAs,
marketing approval applications, or similar applications or requests for
regulatory approvals; provided, however, that reasonable measures are taken to
assure confidential treatment of such information, if available;


 


(d)                                  made
by such party, to a Third Party in connection with exercising rights granted
under this Agreement or to Affiliates, existing or potential permitted
Sublicensees, research partners, employees, consultants, representatives or
agents, each of whom prior to disclosure must be bound by obligations of
confidentiality and non-use at least equivalent in scope to those set forth in
this Article 8;


 


(e)                                  made
by such party to existing or potential acquirers or merger candidates; existing
or potential pharmaceutical collaborators (to the extent contemplated under
this


 


22



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


Agreement);
investment bankers; existing or potential investors, venture capital firms or
other financial institutions or investors for purposes of obtaining financing;
each of whom prior to disclosure must be bound by obligations of confidentiality
and non-use at least equivalent in scope to those set forth in this
Article 8; or


 


(f)                                    made
in a patent application or in prosecuting a patent application filed in
conformance with this Agreement.


 


(g)                                 used
in exercising the rights and licenses granted to a party under this Agreement
provided, however, that any disclosure pursuant to such use shall be as
provided in Section 8.4 (c) or (d).


 


8.5                               Survival.  The parties’
obligations under Sections 8.1 through 8.4 shall terminate [***]
after the expiration or termination of this Agreement in its entirety.


 


8.6                               Publicity.  The parties shall
be entitled to issue a press release relating to this Agreement or activities conducted hereunder, as approved by both
parties.  A party may issue any
subsequent press releases relating to this Agreement or activities conducted
hereunder upon written approval of the other party, such approval not to be
unreasonably withheld; provided, however, that no approval of the other party
shall be required if a subsequent press release solely discloses the
information that a milestone under this Agreement has been achieved or any
information that has previously been approved. 
The parties intend to publish the results obtained in the performance of
the Research Plan, and shall reasonably cooperate to draft, review and submit
such publication promptly after significant results are obtained under the
Research Plan, subject to the other terms and conditions in this
Section 8.6.  Each party shall
provide to the other party the opportunity to review any proposed abstracts,
manuscripts or summaries of presentations that cover the parties’ activities
under the Research Plan.  Each party
shall designate a person who shall be responsible for approving such
publications.  Such designated person
shall respond in writing promptly and in no event later than [***]
after receipt of the proposed material with either approval of the proposed
material or a specific statement of concern, based upon either the need to seek
patent protection or to protect a party’s Confidential Information, or concern
regarding competitive disadvantage arising from the proposal.  In the event of concern, the submitting party
shall not submit such publication or to make such presentation that contains
such information until the other party is given a reasonable period of time
(not to exceed [***]) to seek patent protection for any
material in such publication or presentation that it believes is patentable, or
as necessary to resolve any other issues. 
In no event shall a party be permitted to publish the Confidential
Information of the other party in breach of a party’s confidentiality
obligations under this Agreement.


 


9.                                      PATENTS.


 


9.1                               Prosecution of Cerus Patents.  At the cost and expense of Cerus,  Cerus shall file, prosecute and maintain Cerus Patents
through patent counsel selected by Cerus, and shall also control any
interference, opposition or related proceedings for Cerus Patents.  Cerus shall consult with and keep MedImmune
advised with respect thereto.


 


23



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


9.2                               MedImmune
Review and Comment.  With respect to any Cerus Patents,
each patent application, office action, response to office action, request for
terminal disclaimer, and request for reissue or reexamination or extension of
any patent issuing from such application shall be provided to MedImmune
sufficiently prior to the filing of such application, response or request to
allow for review and comment by MedImmune. Cerus agrees to consider such
comments and follow reasonable comments unless Cerus believes that such
comments are adverse to the interests of Cerus.


 


9.3                               Maintenance
of Cerus Patents.  Cerus shall not allow any Cerus
Patents licensed to MedImmune to lapse (other than due to expiration of the
patent term) or be surrendered, or abandoned without the written consent of
MedImmune.


 


9.4                               Patents on MedImmune Developments.  At the cost and expense of MedImmune,
MedImmune shall file, prosecute and maintain all Patent Rights on MedImmune
Developments through patent counsel selected by MedImmune, and shall also
control any interference, opposition or related proceedings for such Patent
Rights.


 


9.5                               Disclosure of Patent Applications.  With respect to any Patent Rights on
MedImmune Developments, each patent application filed shall be provided to
Cerus [***] of filing such patent application.


 


9.6                               Maintenance of Patents on MedImmune
Developments. 
MedImmune shall not allow any Patent Rights that are MedImmune
Developments licensed to Cerus to lapse (other than due to expiration of the
patent term) or be finally surrendered, or finally abandoned without providing
Cerus the opportunity to maintain such Patent Rights at the cost and expense of
Cerus.


 


9.7                               Patents
on Jointly Owned Inventions.  MedImmune shall file, prosecute and maintain
all Patent Rights on jointly owned Joint Inventions claiming inventions
specifically related to the Product or EphA2, and Cerus shall file, prosecute
and maintain all Patent Rights on jointly owned Joint Inventions claiming
inventions that generally relate to the manufacture, composition or use of [***], as well as all other Joint
Inventions.  The party responsible for
such activities shall select and use for such purpose patent counsel that is
reasonably acceptable to the other party, and shall also control any
interference, opposition or related proceedings for such Patent Rights.  The party responsible for such activities for
such Patent Rights shall consult with and keep the other party advised with
respect thereto.   With respect to any such Patent
Rights, each patent application, office action, response to office action,
request for terminal disclaimer, and request for reissue or reexamination or
extension of any patent issuing from such application shall be provided to the
party not responsible for filing, prosecuting and maintaining such Patent
Rights sufficiently in advance of the filing of such application, response or
request to allow for review, comment and approval by such party. The party
responsible for activities with respect to Patent Rights on jointly owned Joint
Inventions hereunder shall not allow any Patent Rights claiming such Joint
Inventions to lapse (other than due to expiration of the patent term) or be
surrendered, or abandoned without the written consent of the other party.  The parties shall [***] of all
activities conducted pursuant to this Section 9.7.  Subject to the
exclusive license granted to MedImmune under this Agreement, the exclusivity provisions under this Agreement 


 


24



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


and the payments due to Cerus pursuant to this Agreement, each
party shall have the right to exploit, license and enforce Joint Patents
without the consent of and without accounting to the other party.


 


10.                               INFRINGEMENT.


 


10.1                        Infringement
of Cerus Patents.  If any of the Cerus Patents is
infringed in the Licensed Territory in the Field by the manufacture, use or
sale of a vaccine product expressing EphA2 by an unlicensed Third Party,
MedImmune shall have the right and option, but not the obligation, to bring an
action to terminate such infringement, [***], and to join Cerus as a party plaintiff
if required.  In the absence of
MedImmune’s joinder of Cerus as a party plaintiff, Cerus shall, at its option,
be permitted to join any such action by MedImmune [***].  MedImmune shall promptly notify Cerus of any
such infringement and shall keep Cerus informed as to the prosecution of any
action for such infringement.  MedImmune
shall have the sole right to control any such action (including any action
joined by Cerus) and the settlement and compromise thereof provided that no
settlement, consent judgment or other voluntary final disposition of the suit
that adversely affects Cerus or the Cerus Patents may be entered into without
the consent of Cerus, which consent shall not unreasonably be withheld.  In the event that MedImmune chooses not to
bring such action or fails to bring such action [***] of first
receiving notice or obtaining any knowledge of any such infringement, Cerus
shall have the right and option, but not the obligation, to bring an action to
terminate such infringement, [***], and to join MedImmune as a party
plaintiff if required.  Cerus shall keep
MedImmune informed as to the prosecution of any action for such
infringement.  Cerus shall have [***] any such action filed by Cerus (including
any action joined by MedImmune) and the settlement and compromise thereof,
provided that no settlement, consent judgment or other voluntary final
disposition of the suit that adversely affects MedImmune or Products may be
entered into without the consent of MedImmune, which consent shall not
unreasonably be withheld. 
Notwithstanding anything in this Article 10, Cerus shall have [***] any action against any person or entity
related to the infringement by a Third Party of Cerus Patents other than by
reason of the manufacture, use or sale by a Third Party of products competitive
with Products.


 


10.2                        Recovery
Allocation.  In the event that a party
undertakes the enforcement under Section 10.1 of any of the Cerus Patents,
any recovery of damages for any such suit shall be applied [***]
of such party regarding such suit and [***] of the other party regarding such suit,
if such other party has joined or been joined in such suit. The balance
remaining from any such recovery shall be divided between the parties as
follows (i) [***] and (ii) [***].


 


25



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


10.3                        Cooperation.  In any infringement
suit either party may institute to enforce any of the Cerus Patents pursuant to
this Agreement, the other party hereto shall, at the request of the party
initiating such suit, reasonably cooperate and, to the extent reasonably
possible, have its employees testify when requested and make available relevant
records, papers, information, samples, specimens, and the like. [***].


 


10.4                        Infringement
of Joint Patents.  If the parties become aware of any
alleged or threatened infringement of Joint Patents with respect to [***] other than by reason of the manufacture, use
or sale of a product competitive with Products by an unlicensed Third
Party, Cerus shall have the primary right, but not the obligation, to take
appropriate action against any person or entity directly or contributorily
infringing such patents and to join MedImmune as a party plaintiff if required.  MedImmune shall cooperate reasonably in any
such effort, including if required to bring a legal action, the furnishing of a
power of attorney. In the absence of Cerus’ joinder of MedImmune as a party
plaintiff, MedImmune shall have the right to participate in such action [***]
with its own counsel.  If Cerus does not
bring an action or proceeding against such alleged or threatened infringer [***]
of receiving notice pursuant to this Section 10.4, then MedImmune shall
have the right, but not the obligation, to take appropriate action against any
person or entity directly or contributorily infringing such patents, and to
join Cerus as a party plaintiff if required. 
Cerus shall cooperate reasonably in any such effort, including if
required to bring a legal action, the furnishing of a power of attorney and
shall have the right to participate in such action [***] with its
own counsel.  In the absence of
MedImmune’s joinder of Cerus as a party plaintiff, Cerus shall have the right
to participate in such action at its own expense with its own counsel.  In all other cases, the parties shall discuss
who shall initiate the action and in the absence of agreement, either or both
parties have the right to initiate the action. 
In the event that a party shall undertake the enforcement of any of such
Joint Patents, any recovery of damages for any such suit shall be applied [***]
of such party regarding such suit and [***] of the other party regarding such suit,
if such other party has joined or been joined in such suit. The balance
remaining from [***].


 


10.5                        Third
Party Actions.  Each party shall control the defense of any
infringement action brought against such a party by a Third Party, and if such
an action is brought against both parties, the parties shall cooperate with
each other in the defense thereof.


 


11.                               OWNERSHIP
OF INVENTIONS AND MATERIALS.


 


11.1                        MedImmune
Inventions.  Subject to Section 11.4, all
right, title and interest in and to any inventions made solely by employees or
contractors (not including Cerus) of MedImmune (“MedImmune Inventions”) shall
belong solely to MedImmune.


 


26



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


11.2                        Cerus
Inventions.  Subject to Section 11.4, all
right, title and interest in and to any inventions made solely by employees or
contractors of Cerus under this Agreement (“Cerus Inventions”) shall belong
solely to Cerus.


 


11.3                        Joint
Inventions.  Subject to Section 11.4, all
right, title and interest in and to any inventions made by one or more
employees or contractors of MedImmune and one or more employees or contractors
of Cerus under this Agreement (“Joint Inventions”) shall belong jointly to
MedImmune and to Cerus, such that each party shall have an undivided interest
therein.  Subject to the licenses granted
under this Agreement, and the payment obligations under this Agreement, each
party shall have the right to exploit and grant rights to Joint Inventions and
Joint Patent Rights without the consent or approval of the other party and
without accounting to the other party.


 


11.4                        Disclosure
and Cooperation.  Each party agrees promptly to
disclose to the other party any MedImmune Invention that is a MedImmune
Development, Cerus Invention, or Joint Invention, as set forth above, and to
execute such documents and perform such other acts as the other party may
reasonably request to obtain, perfect and enforce such rights to such
inventions and the assignment thereof. 
MedImmune and Cerus will obtain appropriate assignments from its
employees, contractors and Affiliates to effect the intent of this
Article 11.


 


11.5                        Ownership
of Materials.  The physical embodiment of
Materials provided or generated pursuant to the parties’ activities under this
Agreement shall be as follows:  Cerus
shall solely own all Materials produced or generated solely by employees or
contractors of Cerus pursuant to the Research Plan.  MedImmune shall solely own all Materials
produced or generated by employees or contractors of MedImmune pursuant to the
Agreement.  The parties will jointly own
all Materials produced or generated jointly by employees or independent
contractors of each party.  For clarity,
the foregoing shall not be construed to affect the parties’ rights in and to
any inventions, Patent Rights or intellectual property rights covering such
Materials, which ownership is addressed above in this Article 11.


 


12.                               REPRESENTATIONS,
WARRANTIES AND COVENANTS.


 


12.1                        Mutual.  Each of Cerus and
MedImmune warrants and represents to the other that:


 


(a)                                  it
has the corporate power and authority and the legal right to enter into this
Agreement and to perform its obligations hereunder; (b)
it has taken all necessary corporate action on its part to authorize the
execution and delivery of this Agreement and the performance of its obligations
hereunder; and (c) this Agreement has been duly
executed and delivered on its behalf, and constitutes a legal, valid, binding
obligation, enforceable against it in accordance with its terms.


 


12.2                        Cerus
Representations.  Cerus represents and warrants to
and covenants with MedImmune that:


 


27



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


(a)                                  it
has not previously granted and, prior to expiration or termination of this
Agreement will not grant any rights in, the Cerus Patents or Cerus Know-How or
Cerus Materials that conflict with the rights and licenses granted to MedImmune
herein;


 


(b)                                  all
of the Cerus Patents that exist as of the Effective Date are listed in Appendix
B, Cerus owns all right, title and interest in and to the Cerus Patents of
Appendix B except as otherwise indicated on Appendix B; and Cerus has not
received any written claim and has no knowledge of a threatened claim from a
Third Party, nor has any knowledge that any Third Party intends to assert any
claim asserting the invalidity, unenforceability or misuse of the Cerus Patents;


 


(c)                                  to
its knowledge, the conduct of the parties’ activities under the Research Plan
and otherwise under this Agreement will not infringe the Patent Rights of any
Third Party;


 


(d)                                  the
use of the technology of Section 1.4(a) and/or (b) in research, development,
manufacture, use or sale of a Product would not infringe a claim that is
presently included in any of the excluded Patent Rights of Appendix A or any
claim that would reasonably be expected to be granted in any of  such Patent Rights, and


 


(e)                                  the
use of the technology of Section 1.4(a) and/or (b) would not require the
excluded Know-How and excluded Materials of Appendix A to research, develop,
make, use or sell a Product.


 


12.3                        Disclaimer. (a) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTIONS 12.1
AND 12.2, NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY WARRANTIES OF
ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR
VALIDITY OF ANY PATENT RIGHTS ISSUED OR PENDING.


 


(b)                                  IN NO EVENT SHALL EITHER PARTY OR THEIR AFFILIATES BE LIABLE FOR
SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR
TREBLE DAMAGES, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY;
PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT LIMIT THE INDEMNIFICATION
OBLIGATION OF SUCH PARTY UNDER THE PROVISIONS OF ARTICLE 13 FOR SUCH
DAMAGES CLAIMED BY A THIRD PARTY.


 


12.4                        Additional Covenants.


 


(a)                                  Cerus hereby covenants and agrees
that: (i) it will not consent to any amendment or modification or termination
of any agreement as to which MedImmune has received a sublicense pursuant to
this Agreement in any way that could adversely affect MedImmune without the
written permission of MedImmune; (ii) it will perform its contractual
obligations as necessary to keep any such agreement in full force and effect
during the term thereof; (iii) it will not assign any such agreement without
the written consent of MedImmune (which consent will not be unreasonably
withheld), except that such consent will not be required


 


28



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


for assignment to an Affiliate or in connection with the transfer
or sale of all or substantially all of its business to which this Agreement relates, or in the event of its merger,
consolidation, change in control or similar transaction, (x) provided that such
assignment is subject to this Agreement and (y) such assignment does not
adversely affect any such agreement or MedImmune rights thereunder; and (iv) it
will promptly advise MedImmune of any notice of a breach or intent to terminate
any such agreement that is received, and to the extent permitted under the such
agreement, MedImmune will have the right but not the obligation to cure any
such breach.


 


(b)                                  Neither party, nor its Affiliates
that are involved in the development, manufacture or commercialization of
Products, shall, during the term of this Agreement and for a period of [***], recruit, solicit or induce any employee
of the other party to terminate his or her employment with such other party, or
entertain an offer to change employment proposed by an employee of the other
party.


 


13.                               INDEMNIFICATION.


 


13.1                        By MedImmune.  MedImmune agrees to indemnify and
hold harmless Cerus, its directors, officers, employees and agents
(individually and collectively, the “ Cerus Indemnitee”) from and against all
losses, liabilities, damages and expenses (including reasonable attorneys’ fees
and costs) incurred in connection with any claims, demands, actions or other
proceedings by any Third Party (individually and collectively, “Losses”) to the
extent arising from (a) the research, development, manufacture, use or sale of
Products by MedImmune, or any of its Affiliates or Sublicensees, (b) the use of
Products manufactured or sold by MedImmune or any of its Affiliates or
Sublicensees by any purchasers thereof, or (c) the use by MedImmune or any of
its Affiliates or Sublicensees of the Cerus Patents, Cerus Know-How or Cerus
Materials.


 


13.2                        By Cerus.  Cerus agrees to indemnify
and hold harmless MedImmune, its directors, officers, employees and agents
(individually and collectively, the “MedImmune Indemnitee”) from and against
all Losses to the extent arising from the practice by Cerus or any use of its
Affiliates or sublicensees of the licenses granted to Cerus pursuant to
Section 3.3.


 


13.3                        Defined Terms.  Either of the MedImmune
Indemnitee or the Cerus Indemnitee shall be an “Indemnitee” for the purpose of
this Article 13, and the party that is obligated to indemnify the
Indemnitee under Section 13.1 or 13.2 shall be the “Indemnifying Party”.


 


13.4                        Defense.  If any such claims or actions are
made, the Indemnitee shall be defended [***] by counsel selected by Indemnifying Party and reasonably
acceptable to the Indemnitee, provided that the Indemnitee may, [***], also be represented by counsel of its
own choosing.   The Indemnifying Party
shall have the sole right to control the defense of any such claim or action, subject to the terms of this Article 13.


 


13.5                        Limitation.  The Indemnifying Party’s
indemnification under Section 13.1 or 13.2 shall not apply to any Losses
determined by final judgment to be attributable to the gross negligence or
intentional misconduct or unlawful act of any Indemnitee.


 


29



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


13.6                        Settlement.  The Indemnifying Party may settle
any such claim, demand, action or other proceeding or otherwise consent to an
adverse judgment (i) with prior written notice to the Indemnitee but without
the consent of the Indemnitee where the only liability to the Indemnitee is the
payment of money and the Indemnifying Party makes such payment (ii) otherwise
only with the prior written consent of the Indemnitee not to be unreasonably
withheld in all other cases.


 


13.7                        Notice.  The Indemnitee shall notify the
Indemnifying Party promptly of any claim, demand, action or other proceeding
under Section 13.1 or 13.2 and shall reasonably cooperate with all
reasonable requests of the Indemnifying Party with respect thereto.


 


13.8                        Permission by Indemnifying Party. 
The
Indemnitee may not settle any such claim, demand, action or other proceeding or
otherwise consent to an adverse judgment in any such action or other proceeding
or make any admission as to liability or fault without the express written permission
of the Indemnifying Party, which shall not be unreasonably withheld.


 


14.                               ASSIGNMENT; SUCCESSORS.


 


14.1                        Assignment.  (a) This Agreement shall not be
assigned or otherwise transferred (in whole or in part, whether voluntarily, by
operation of law or otherwise) by either of the parties without the prior
written consent of the other party (which consent shall not be unreasonably
withheld); provided, however, that either party may, without such consent,
assign this Agreement and its rights and obligations hereunder to an Affiliate
or in connection with a merger, consolidation or sale of all or substantially
all of its business to which this Agreement relates.  Any permitted assignee shall assume all
obligations of its assignor under this Agreement.  Any purported assignment or transfer in
violation of this Section 14.1 shall be void.  MedImmune will not assign MedImmune
Developments without the assignee’s written agreement to Cerus that the
MedImmune Developments are subject to the licenses under this Agreement, and
Cerus will not assign Cerus Patents, Cerus Know-How or Cerus Materials without
the assignee’s written agreement to MedImmune that the Cerus Patents, Cerus
Know-How and Cerus Materials are subject to the licenses under this Agreement.


 


14.2                        Successors.  Subject to the limitations on
assignment herein, this Agreement shall be binding upon and inure to the
benefit of said successors in interest and assigns of MedImmune and Cerus.


 


15.                               TERM AND TERMINATION.


 


15.1                        Term.  Except as otherwise specifically
provided herein and unless sooner terminated pursuant to Sections 15.2, 15.3 or
15.4 of this Agreement, this Agreement and the licenses and rights granted
thereunder shall remain in full force and effect until the earlier of (i) fifty
(50) years or (ii) MedImmune has no further royalty obligation hereunder, at
which time MedImmune shall have a fully paid-up, non-cancelable, nonexclusive
license under the Cerus Know-How and Cerus Materials to make, have made, use,
import, export, sell and offer to sell Products.


 


30



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


15.2                        Termination by MedImmune.  MedImmune shall have the right to terminate this Agreement in the
entirety or with respect to one or more countries, for any reason other than
material breach by Cerus, upon (i) [***] prior written notice to Cerus, if
such termination notice is provided to Cerus during the Research Term, or (ii)
upon [***]
prior written notice to Cerus, if such termination notice is provided to Cerus
after the Research Term terminates (such notice, the “MedImmune Termination
Notice”).  Upon any termination of this
Agreement with respect to one or more countries (and not in its entirety), the
Licensed Territory shall thereafter exclude the relevant countries.


 


15.3                        Termination for Material Breach.


 


(a)                                  In
addition to the termination rights under Section 3.4, in the event that
MedImmune fails to make a payment under this Agreement when due or materially
breaches its obligations under Section 3.5, 3.7, 5.3, 5.4, 5.5, 5.6, 5.7,
9.5, 11.5, 14.1 or Articles 8 or 13 Cerus shall provide MedImmune with written
notice of such breach and if such breach is not cured within either thirty (30)
days after such written notice in the case of payment default, or ninety (90)
days in the event of any other breach, then Cerus may terminate this Agreement
by written notice to MedImmune.  If Cerus
breaches its obligations under Sections 2.10, 3.7, 3.9, 11.5, 14.1 or Articles
8 or 13, then MedImmune may terminate this Agreement by written notice to
Cerus, in each case as set forth in this Section 15.3(a) with respect to
termination by Cerus.


 


(b)                                  With respect to any material breach
as to which a party has the right to terminate this Agreement, the Agreement
may be terminated therefor, only if such party provides the breaching party
with written notice thereof within ninety (90) days after such party first
becomes aware of such breach.


 


(c)                                  Notwithstanding the foregoing, if
Cerus terminates this Agreement pursuant to Section 3.4(e) only with
respect to Europe or Japan, then MedImmune’s licenses in Europe or Japan shall
terminate and the Licensed Territory shall thereafter exclude Europe or Japan
as the case may be.


 


(d)                                  In the event that MedImmune makes a
payment under this Agreement to avoid termination by Cerus pursuant to this
Section 15.3, despite MedImmune’s good faith dispute as to whether such
payment is due to Cerus, then MedImmune shall have the right within its sole
discretion to institute proceedings pursuant to Section 16.3 to determine
whether such payment was actually due to Cerus pursuant to this Agreement.


 


15.4                        Termination for Insolvency. 
If voluntary or involuntary proceedings by or against a party are
instituted in bankruptcy under any insolvency law, or a receiver or custodian
is appointed for such party, or proceedings are instituted by or against such
party, in each of the foregoing cases only if it is for dissolution of such
party, which proceedings, if involuntary, shall not have been dismissed within
sixty (60) days after the date of filing, then this Agreement may be terminated
by the other party.


 


15.5                        Sale of Inventory.  Upon any termination of this
Agreement in its entirety, except a termination by Cerus under
Section 15.3 or 15.4, MedImmune, at its option, shall be entitled to


 


31



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


sell any completed inventory of Product which remains on hand as
of the date of the termination during the [***]
after such termination, so long as MedImmune pays to Cerus the royalties
applicable to said subsequent sales in accordance with the terms and conditions
as set forth in this Agreement.


 


15.6                        Licenses. 
The license(s) granted to MedImmune in this Agreement shall
terminate upon any termination or expiration of this Agreement.  In the event that this Agreement is
terminated, Cerus agrees to grant to a Sublicensee designated by MedImmune
(other than an Affiliate of MedImmune) a direct license to such Sublicensee
under the terms and conditions of this Agreement, which license shall be of the
same scope sublicensed to such Sublicensee, substituting the name of such
Sublicensee for MedImmune, provided that such Sublicensee (i) agrees to be
bound to Cerus under the terms and conditions of this Agreement; (ii) the
Sublicensee is not in breach of its sublicense agreement with MedImmune; and
(iii) the Sublicensee pays to Cerus any amount due and owing under this
Agreement at the time of termination that has not been paid by MedImmune.  At the request of MedImmune, Cerus agrees to
acknowledge to a Sublicensee in writing Cerus’ obligations under this
Section 15.6.  The direct license that survives
termination of this Agreement pursuant to Section 15.6 shall be a direct
license with only one Sublicensee.


 


15.7                        Right of Offset.  If MedImmune reasonably believes
that Cerus is in breach of its obligations to make payments to Third Parties
pursuant to Articles 9 or 10, then MedImmune may make the relevant payment on
Cerus’ behalf and offset any such payments made to Third Parties against
amounts due to Cerus pursuant to this Agreement; provided that MedImmune shall
provide to Cerus at least ten (10) days’ advance notice before making any such
payment and shall confer with Cerus before making such payment to determine
whether there is a good faith dispute as to whether such payment is in fact due
to such Third Party.


 


15.8                        Return of Materials; Cessation of Product Sales.  Upon any termination of this Agreement, MedImmune shall promptly
return to Cerus any Cerus Materials and documents containing or embodying Cerus
Know-How.


 


15.9                        Survival.  The provisions of Articles 1, 11,
13 (as to events occurring during the term of the Agreement), 14 and 16 and
Sections 3.1(b), 3.3 (except subsection (iii)), 3.5, 3.7, 3.8, 3.9 (to the extent
provided therein), 3.10, 4.3, 5.4, 5.5, 5.6, 5.7, 6.2, 8.1 through 8.5 (as
provided therein), 9.4, 9.5, 9.6, 9.7, 10.4, 12.6(b), 15.1, 15.2, 15.3, 15.5,
15.6, and 15.8 through 15.10 shall survive any expiration or termination of
this Agreement.


 


15.10                 Accrued Rights and Obligations. 
Termination
or expiration of this Agreement for any reason shall not (a) release either
party from any liability which, at the time of such termination or expiration,
has already accrued or which is attributable to a period prior to such
termination or expiration or (b) preclude either party from pursuing any rights
and remedies it may have hereunder or at law or in equity with respect to any
breach of, or default under, this Agreement. 
The parties understand and agree that monetary damages may not be a
sufficient remedy for any breach of this Agreement and that the non-breaching
Party may be entitled to injunctive relief as a partial remedy for any such
breach.


 


32



















 


[***] = Certain confidential information contained in this document, marked
by brackets, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange act
of 1934, as amended.


 


16.                               GENERAL PROVISIONS.


 


16.1                        Force Majeure. 
No failure or omission by the parties hereto in the performance of any
obligation of this Agreement (other than an obligation for the payment of
money) shall be a breach of this Agreement, nor shall it create any liability,
if the same shall arise from any cause or causes beyond the reasonable control
of the affected party, including, but not limited to, the following, which for
purposes of this Agreement shall be regarded as beyond the control of the party
in question: acts of God; acts or omissions of any government; any rules, regulations,
or orders issued by any governmental authority or by any officer, department,
agency or instrumentality thereof; fire; storm; flood; earthquake; accident;
war; rebellion; insurrection; riot; invasion; strikes; and lockouts or the
like; provided that the party so affected shall use its commercially reasonable
efforts to avoid or remove such causes of nonperformance and shall continue
performance hereunder with the utmost dispatch whenever such causes are
removed.


 


16.2                        Relationship.  The relationship between Cerus and
MedImmune is that of independent contractors. 
Cerus and MedImmune are not joint venturers, partners, principal and
agent, master and servant, employer or employee, and have no relationship other
than as independent contracting parties.  Cerus shall have no power to bind or obligate
MedImmune in any manner.  Likewise,
MedImmune shall have no power to bind or obligate Cerus in any manner.


 


16.3                        Arbitration.  Any matter or disagreement under
this Agreement shall be finally resolved by binding arbitration.  Whenever a party decides to institute
arbitration proceedings, it shall give written notice to that effect to the
other.  Either party may, notwithstanding
this Agreement, seek from any judicial authority pre-award interim, provisional
or conservatory relief that may be necessary to protect the rights of that
party pending the arbitrator’s determination of the merits of the
controversy.  Discovery in any
arbitration proceeding under this Section 16.3 shall be permitted as set
forth in the Federal Rules of Civil Procedure with respect to the performance
by the parties of their obligations under this Agreement and such other matters
as the arbitrator may determine (it being the intent of the parties that full
discovery occur with respect to the salient facts).  The parties shall apply the Rules of Federal
Evidence to the hearing.  Any such
arbitration shall be conducted under the Comprehensive Rules for Commercial, Real
Estate and Construction Cases of the Judicial Arbitration & Mediation Services
by a single arbitrator chosen by mutual consent of the parties.  Should the parties fail to agree on the
selection of an arbitrator, they shall each appoint one arbitrator and the two
arbitrators shall agree upon a neutral third arbitrator to serve as the sole
arbitrator.  Any such arbitration shall
be held in Washington D.C., if requested by Cerus, or in San Francisco,
California, if requested by MedImmune. 
The arbitrator shall render his or her decision [***] of the completion of the
arbitration.  The arbitrator shall have
the authority to allocate between the parties the costs of arbitration in such
equitable manner as he or she determines. 
Judgment upon the award so rendered may be entered in any court having
jurisdiction or application may be made to such court for judicial acceptance
of any award and an order of enforcement, as the case may be. In no event shall
a demand for arbitration be made after the date when institution of a legal or
equitable proceeding based upon such claim, dispute or other matter in question
would be barred by the applicable statute of limitations or the


 


33



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


provisions of this Agreement. 
The parties hereby waive their right to a jury trial in connection with
any matter submitted for resolution by arbitration hereunder, except as
provided in the last sentence hereof. 
Notwithstanding the foregoing, disputes regarding the validity,
inventorship, scope or enforceability of patents shall be submitted to a court
of competent jurisdiction in the country where such patent has issued or such
patent application is filed.  In any
decision, the arbitrator shall not have the authority to change the terms or
conditions of this Agreement or the rights or obligations of a party hereunder.


 


16.4                        Entire Agreement.  This Agreement sets forth the
entire agreement and understanding between the parties as to the subject matter
thereof and supersedes all prior agreements in this respect, provided that the
Materials Transfer Agreement between the parties dated November 13, 2002
(as amended) shall continue in full force and effect with respect to the
activities conducted thereunder prior to the Effective Date, and the Mutual
Confidentiality Agreement between the parties dated September 24, 2002
shall continue in effect with respect to the information exchanged prior to the
Effective Date, except to the extent MedImmune is permitted to continue to use
relevant materials and information covered by such agreements under this
Agreement.  There shall be no amendments
or modifications to this Agreement, except by a written document, which is
signed by both parties.


 


16.5                        Governing Law.  This Agreement shall be construed
and enforced in accordance with the laws of the State of Delaware without
regard to the conflicts of law principles thereof.


 


16.6                        Headings.  The headings in this Agreement have
been inserted for the convenience of reference only and are not intended to
limit or expand on the meaning of the language contained in the particular
article or section.


 


16.7                        Waiver. 
Any delay
in enforcing a party’s rights under this Agreement or any waiver as to a
particular default or other matter shall not constitute a waiver of a party’s
right to the future enforcement of its rights under this Agreement, excepting
only as to an expressed written and signed waiver as to a particular matter for
a particular period of time.


 


16.8                        Notices. 
Any notices
given pursuant to this Agreement shall be in writing, delivered by any means,
addressed to the other party at its address indicated below, or to such other
address as the addressee shall have last furnished in writing to the addresser
and (except as otherwise provided in this Agreement) shall be effective upon
receipt by the addressee.


 


To MedImmune:


MedImmune, Inc.


One MedImmune Way


Gaithersburg, MD  20878


Attention:  V.P. General Counsel, Legal Affairs


 


34



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


To Cerus:


Cerus Corporation


2411 Stanwell Drive


Concord, CA 94520


Attention:  Vice President, Legal Affairs


 


Copy to:


Cooley Godward LLP


5 Palo Alto Square


Palo Alto, CA 94306


Attn:  Robert Jones, Esq.


 


16.9                        Counterparts.  This Agreement may be executed in
two counterparts, each of which shall be deemed an original agreement.


 


16.10                 Plural and Singular; Masculine and Feminine.  Except where the context otherwise requires, wherever used, the
singular will include the plural, the plural the singular, the use of any
gender will be applicable to all genders. 
The captions of this Agreement are for convenience of reference only and
in no way define, describe, extend or limit the scope or intent of this
Agreement or the intent of any provision contained in this Agreement.  The term “including” as used herein means
including, without limiting the generality of any description preceding such
term.  References to “Section” or
“Sections” are references to the numbered sections of this Agreement, unless
expressly stated otherwise.


 


16.11                 Dollars.  All dollars are United States
Dollars.


 


16.12                 Section 365(n) of the Bankruptcy Code. 
All rights and licenses granted under or pursuant to any section of
this Agreement are, and shall otherwise be deemed to be, for purposes of
Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to
“intellectual property” as defined under Section 101(35A) of the U.S.
Bankruptcy Code.  The parties shall
retain and may fully exercise all of their respective rights and elections
under the U.S. Bankruptcy Code.  The
Parties agree that MedImmune or Cerus, as applicable, as a licensee of such
rights under this Agreement, shall retain and may fully exercise all of its
rights and elections under the U.S. Bankruptcy Code, and that upon commencement
of a bankruptcy proceeding by or against a party under the U.S. Bankruptcy
Code, the other party shall be entitled to a complete duplicate of or complete
access to any such licensed intellectual property and all embodiments of such
licensed intellectual property.


 


35



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.


 


	
  CERUS CORPORATION

  	
  MEDIMMUNE, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ David N.
  Cook

  	
   

  	
  By:

  	
  /s/ Edward T.
  Mathers

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  David N. Cook

  	
   

  	
  Name:

  	
  Edward T.
  Mathers

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  VP, Research and
  Development

  	
   

  	
  Title:

  	
  VP, Corporate
  Development

  	
   

  
										



 


	
  APPENDIX A

  	
   

  	
  Excluded
  Know-How

  
	
  APPENDIX B

  	
   

  	
  Current Cerus
  Patents

  
	
  APPENDIX C

  	
   

  	
  {Omitted}

  
	
  APPENDIX D

  	
   

  	
  Common Stock
  Purchase Agreement

  
	
  APPENDIX E

  	
   

  	
  Research Plan

  
	
  APPENDIX F

  	
   

  	
  Excluded
  Sublicensees

  
	
  APPENDIX G

  	
   

  	
  Cerus Materials

  



 


36



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


APPENDIX A


 


Excluded Know-How,
Materials And Patents


 


[***]


 



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


APPENDIX B


 


CERUS PATENT RIGHTS


 


	
  CERUS

  REF. NO.

  	
   

  	
  COUNTRY OR

  TYPE

  	
   

  	
  TITLE

  	
   

  	
  APPLICATION NO.

  	
   

  	
  FILING

  DATE

  
	
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  [***]

  	
   

  	
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  [***]

  



 


Cerus Corporation/MedImmune
Ventures, Inc. Common Stock Purchase Agreement


 


1



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


APPENDIX C                                                                     {Purposely omitted}


 


Cerus
Corporation/MedImmune Ventures, Inc. Common Stock Purchase Agreement


 


1



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


APPENDIX D                                                                     Common Stock Purchase Agreement


 


CERUS CORPORATION


 


COMMON STOCK PURCHASE AGREEMENT


 


This COMMON STOCK PURCHASE AGREEMENT
(the “Agreement”) is entered into as of April 20, 2004, by and between CERUS CORPORATION, a Delaware corporation (“Cerus”), and MEDIMMUNE VENTURES, INC., a Delaware corporation (“MEDI
Ventures”).


 


RECITALS


 


WHEREAS, on the date
hereof Cerus and medimmune, inc., a Delaware corporation and parent corporation
of MEDI Ventures (“medimmune”), are entering into that certain Collaboration
and License Agreement (the “License Agreement”) pursuant to which MedImmune
will collaborate with and obtain from Cerus an exclusive worldwide right and
license to the EphA2 Vaccine Product (as defined in the License Agreement); and


 


WHEREAS, as
referenced in Article 7 of the license Agreement, MedImmune has agreed to
cause MEDI Ventures to enter into and perform this agreement pursuant to which
Cerus will have the option to cause MEDI Ventures to purchase shares of common
stock, $.001 par value per share, of the Company (“Common Stock”) on the terms
and conditions set forth herein.


 


NOW, THEREFORE, in
consideration of the foregoing recitals and the mutual promises hereinafter set
forth, the parties hereto agree as follows:


 


1.                                      AGREEMENT
TO SELL AND PURCHASE.


 


1.1                               Sale
and Purchase Of Common Stock.  [***] 
(as defined in the License Agreement”) (the [***]) and subject to the terms and conditions of the License
Agreement and the satisfaction or waiver of the conditions set forth in
Section 7 below, Cerus shall have the option to elect, in its sole
discretion, to issue and sell to MEDI Ventures, and upon such election by
Cerus, MEDI Ventures shall purchase from Cerus, as further described in
Section 2, that number of shares of Common Stock (the “Shares”), rounded
to the nearest whole number, equal to (a) [***] divided by
the purchase price per share, which shall be equal to the product of (b) (i)
the average of the closing sales prices of the Common Stock on the Nasdaq
National Market of the Nasdaq Stock Market (the “Nasdaq Stock Market”) as
reported by the Nasdaq Stock Market  for
the thirty (30) trading days ending on and including the last full trading day
immediately preceding the [***] and  (ii) [***]  Cerus shall notify MEDI Ventures of its election
no later than the [***] following
the [***], which notice shall be sent in accordance
with the provisions of Section 8.9 (the “Notice”).


 


Cerus Corporation/MedImmune
Ventures, Inc. Common Stock Purchase Agreement


 


2



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


1.2                               Authorization
Of Shares.  Cerus has authorized the
sale and issuance to MEDI Ventures of the Shares and, prior to the Closing Date
(as defined in section 2), shall authorize a sufficient number of Shares
to cover the sale and issuance of the Shares to be purchased hereunder.


 


2.                                      CLOSING,
DELIVERY AND PAYMENT.


 


Subject to the terms and conditions hereof, the closing of the sale and
purchase of the shares under this agreement (the “Closing”) shall take place at
the offices of cooley Godward LLP, One Maritime Plaza, 20th Floor,
San Francisco, California 94111, on the day that is five (5) trading days after
the Notice is given (the “Closing Date”).  
At the Closing, subject to the terms and conditions hereof, Cerus will
instruct the transfer agent to deliver to MEDI Ventures a certificate,
registered in the name of MEDI Ventures, representing the Shares against
payment by or on behalf of MEDI Ventures of the purchase price therefor by
cash, wire transfer, or by such other means as shall be mutually agreeable to
MEDI Ventures and Cerus.


 


3.                                      REPRESENTATIONS
AND WARRANTIES OF CERUS.


 


Cerus hereby represents and warrants to Medi Ventures as follows:


 


3.1                               Organization,
Good Standing And Qualification. 
Cerus is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware.  Cerus has full power and authority to own and
operate its properties and assets, and to carry on its business as presently
conducted and as proposed to be conducted. 
As of the date of this Agreement, Cerus is duly qualified, is authorized
to do business and is in good standing as a foreign corporation in all
jurisdictions in which the nature of its activities and of its properties (both
owned and leased) makes such qualification necessary, except for those
jurisdictions, in the aggregate, in which failure to do so would not have a
material adverse effect on Cerus or its business.


 


3.2                               Authorization;
Binding Obligations.  All corporate
action on the part of Cerus, its officers, directors and stockholders necessary
for the authorization, execution and delivery of this Agreement, for the sale
and issuance of the Shares pursuant hereto and for the performance of Cerus’s
obligations hereunder, has been taken. 
This Agreement, when executed and delivered by the parties hereto, will
be a legal, valid and binding obligation of Cerus enforceable in accordance
with its terms, except as limited by (a) applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application affecting
enforcement of creditors’ rights and (b) general principles of equity that
restrict the availability of equitable remedies.  The sale of the shares is not and will not be
subject to any preemptive rights or rights of first refusal that have not been
properly waived or complied with.  When
issued in compliance with the provisions of this Agreement and the certificate
of incorporation of Cerus, the Shares will be validly issued, fully paid and
nonassessable, and will be free of any liens or encumbrances; provided, however, that the Shares may be subject to
restrictions on transfer under state and/or federal securities laws as set
forth herein or as otherwise required by such laws at the time a transfer is
proposed.


 


3



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


3.3                               Capitalization.  As of the date hereof, the authorized capital
stock of Cerus consists of (a) 50,000,000 (Fifty Million) shares of Common
Stock, of which, as of April 16, 2004, 22,104,766 (Twenty Two Million, One
Hundred Four Thousand, Seven Hundred Sixty Six) shares are issued and
outstanding; (b) 5,000,000 (Five Million) shares of preferred stock, $.001 par
value per share (the “Preferred Stock”), 5,000 (five thousand) shares of which
are designated as Series A Preferred Stock, none of which are issued and
outstanding, and 3,327 (Three Thousand, Three Hundred Twenty Seven) shares of
which are designated as Series B Preferred Stock, all of which are issued and
outstanding, and 250,000 (Two Hundred Fifty Thousand) shares of which are
designated as Series C, none of which are issued. All of the issued and
outstanding shares of Common Stock and Preferred Stock have been duly
authorized and are validly issued, fully paid and nonassessable.  No shares of capital stock of Cerus are
entitled to preemptive rights.  As of the
date hereof, except (i) as otherwise contemplated by Section 1 of this
Agreement, (ii) for rights, warrants, options and securities described in the
SEC Documents (as hereinafter defined) and (iii) for options granted under
Cerus’ option plans, there are no outstanding subscription rights, options,
warrants, convertible or exchangeable securities or other rights of any
character whatsoever relating to issued or unissued capital stock of Cerus, or
any commitments of any character whatsoever relating to issued or unissued
capital stock of Cerus or pursuant to which Cerus is or may become bound to
issue or grant additional shares of its capital stock or related subscription
rights, options, warrants, convertible or exchangeable securities or other
rights, or to grant preemptive rights.


 


3.4                               Compliance
With Other Instruments.  The
execution, delivery and performance of and compliance with this agreement and
the sale of the Shares pursuant hereto will not result in (a) any violation, or
be in conflict with or constitute a default under any term, of the certificate
of incorporation or bylaws of Cerus, (b) any material violation or default of
any mortgage, indenture, contract, agreement, instrument, judgment, decree,
order or any statute, rule or regulation applicable to Cerus or (c) the
creation of any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of Cerus.


 


3.5                               Securities
Exemption.  Assuming the accuracy of
the representations and warranties of MEDI Ventures contained in
Section 4.3 hereof, the offer, sale and issuance of the Shares will be
exempt from the registration requirements of the Securities Act, and will have
been registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification requirements of
all applicable state securities laws. 
Neither Cerus nor any affiliate (as defined in Rule 501(b) of Regulation
D of the Securities Act) or any agent acting on behalf of Cerus or any such
affiliate has directly, or through any agent, sold, offered for sale or
solicited offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act) that is or will be integrated with the sale of
the shares in a manner that might reasonably be expected to subject the
offering, issuance or sale of the shares to the registration requirements of
Section 5 of the Securities Act.


 


3.6                               Valid
Issuance of Shares.  The Shares will
be duly and validly authorized and issued, fully paid and nonassessable when
issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein.


 


4



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


3.7                               Litigation,
Etc.  There is no action, suit,
proceeding nor, to the best of Cerus’ knowledge, any investigation pending or
currently threatened against Cerus, that questions or challenges the validity
of, or seeks to prevent the transactions contemplated by, this Agreement or the
right of Cerus to enter into such agreements.


 


3.8                               Governmental
Consents.  No consent, approval,
order or authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state, local or provincial
governmental authority on the part of Cerus is required in connection with the
consummation of the transactions contemplated by this Agreement, except for
notices required or permitted to be filed with certain state and federal
securities commissions, which notices will be filed by Cerus on a timely basis.


 


3.9                               Compliance with Laws.  Except as disclosed in the SEC Documents, as
of the date of this Agreement, Cerus, to the best of its knowledge, is in
compliance in all material respects with all applicable laws and Cerus
possesses all material licenses, franchise permits, consents, registrations,
certificates, and other governmental or regulatory permits, authorizations or
approvals required for the operation of the business as presently conducted and
for the ownership, lease or operation of Cerus’ properties as presently
conducted (collectively, “Permits”), except for any Permits where the failure
to possess the same would not reasonably be expected to have a material adverse
effect on the properties, business, operations, results of operations,
earnings, assets, liabilities or condition (financial or otherwise) of Cerus
taken as a whole (“Material Adverse Effect”). 
As of the date of this Agreement, Cerus possesses all of the required
Permits, the Permits are valid and in full force and effect, and Cerus has duly
performed and is in compliance in all material respects with all of its
obligations under such Permits, except where noncompliance would not have a
Material Adverse Effect.


 


3.10                        Listing of
Shares.  Cerus shall use its
commercially reasonable efforts to comply with the requirements of the National
Association of Securities Dealers with respect to the issuance of the Shares
and the listing thereof on the Nasdaq Stock Market.


 


3.11                        No
Manipulation of Common Stock.  Cerus
has not taken and will not, in violation of applicable laws, take any action
designed to or that might reasonably be expected to cause or result in
manipulation of the price of Common Stock to facilitate the sale or resale of
the Shares.


 


3.12                        Contracts.  The contracts described in the SEC Documents
or incorporated by reference therein that are material to Cerus on the date
hereof are in full force and effect on the date hereof, and as of the date of
this Agreement, Cerus, to the best of its knowledge, is not in breach of or
default under any of such contracts which would have a Material Adverse Effect.
The preceding sentence is subject to the qualification that Cerus has
previously disclosed that Baxter Capital Corporation has declared an event of
default under a Loan and Security Agreement, dated November 15, 2002, and
Cerus represents and warrants solely that, as of the date of this Agreement, it
is contesting such claim.


 


3.13                        Properties.  As of the date of this Agreement, Cerus has
good and marketable title to all the properties and assets reflected as owned
by Cerus in the financial statements


 


5



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


included in or
incorporated by reference into the SEC Documents, subject to no lien, mortgage,
pledge, charge or encumbrance of any kind except (a) those, if any, reflected
in such financial statements or SEC documents, (b) those of the United States
Government to exercise rights with respect to inventions made with government
support, or (c) those which are not material in amount and do not materially
adversely affect the use of such property by Cerus.  As of the date of this Agreement, Cerus holds
its leased properties under valid and binding leases, with such exceptions as
are not materially significant in relation to its business.


 


3.14                        Taxes.  As of the date of this Agreement, Cerus has
filed all necessary federal, state and foreign income and franchise tax returns
and has paid or accrued all taxes shown as due thereon, and Cerus has no
knowledge of a tax deficiency which has been or might be asserted or threatened
against it which would have a Material Adverse Effect.


 


3.15                        Transfer Taxes.  On the Closing Date, all stock
transfer or other taxes (other than income taxes) that are required to be paid
in connection with the sale and transfer of the Shares to be sold to MEDI
Ventures hereunder will be, or will have been, fully paid or provided for by
Cerus and all laws imposing such taxes will be or will have been fully complied
with.


 


4.                                      REPRESENTATIONS
AND WARRANTIES OF MEDI VENTURES.


 


MEDI Ventures hereby represents and warrants to Cerus as follows (which
representations and warranties do not lessen or obviate the representations and
warranties of Cerus set forth in this Agreement):


 


4.1                               Requisite
Power And Authority.  MEDI ventures
has all necessary power and authority under all applicable provisions of law to
execute and deliver this Agreement and to carry out the provisions of this
Agreement.  All action on the part of
MEDI Ventures required for the lawful execution and delivery of this Agreement
has been taken.  This Agreement, when
executed and delivered, will be a valid and binding obligation of MEDI
Ventures, enforceable in accordance with its terms, except as limited by
(a) applicable bankruptcy, insolvency, reorganization, moratorium or other
laws of general application affecting enforcement of creditors’ rights, and
(b) general principles of equity that restrict the availability of
equitable remedies.


 


4.2                               Consents.  All consents, approvals, orders,
authorizations, registrations, qualifications, designations, declarations or
filings with any governmental or banking authority on the part of MEDI Ventures
required in connection with the consummation of the transactions contemplated
in this agreement have been or shall have been obtained prior to and be
effective as of the Closing.


 


4.3                               Investment
Representations.  MEDI ventures
understands that the Shares have not been registered under the Securities
Act.  MEDI ventures also understands that
the Shares are being offered and sold pursuant to an exemption from
registration contained in the Securities Act based in part upon the
representations of MEDI Ventures contained in this Agreement.  MEDI ventures hereby represents and warrants
as follows:


 


6



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


(a)                                  MEDI
Ventures Is An Accredited Investor.  MEDI
Ventures represents that MEDI Ventures is an Accredited Investor within the
meaning of rule 501(a) of Regulation D under the Securities Act.


 


(b)                                  No Registration.  MEDI Ventures acknowledges that
(i) except as provided in Section 6 of this agreement, the Shares
will not be registered under the Securities Act or any state securities laws by
reason of their issuance by Cerus in a transaction exempt from the registration
requirements thereof and (ii) the Shares may not be sold unless such disposition
is registered under the Securities Act and applicable state securities laws or
is exempt from registration thereunder.


 


(c)                                  Acquisition
For Own Account.  MEDI Ventures is
acquiring the Shares for MEDI Ventures’ own account for investment only, and
not with a view towards their distribution within the meaning of the Securities
Act.


 


(d)                                  MEDI
Ventures Can Protect Its Interest. 
MEDI Ventures represents that by reason of its, or of its management’s,
business or financial experience, MEDI Ventures has the capacity to protect its
own interests in connection with the transactions contemplated in this
agreement.  MEDI Ventures is not a
corporation, trust or partnership specifically formed for the purpose of
consummating these transactions.


 


(e)                                  Company
Information.  MEDI Ventures has had
an opportunity to discuss Cerus’ business, management and financial affairs
with directors, officers and management of Cerus and has had the opportunity to
review Cerus’ operations and facilities. 
MEDI Ventures has also had the opportunity to ask questions of and
receive answers from, Cerus and its management regarding the terms and
conditions of this investment.


 


5.                                      LEGENDS.


 


5.1                               Each
certificate or other document evidencing any of the Shares shall be endorsed
with the legends in the form substantially as set forth in paragraphs (a)
and (b) below, and MEDI Ventures covenants that, except to the extent such
restrictions are waived by Cerus, MEDI Ventures shall not transfer the Shares
represented by any such certificate without complying with restrictions on
transfer described in the legends endorsed on such certificate.  Notwithstanding the foregoing, upon
registration of any Common Stock issued upon conversion of the Shares under the
Securities Act, the provisions of this Section 5 shall no longer apply and
Cerus shall promptly exchange the certificates representing the Shares with
unlegended certificates.


 


(a)                                  The
following legend under the securities act:


 


7



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”).  THEY MAY NOT BE SOLD OR OFFERED FOR SALE OR
OTHERWISE DISTRIBUTED UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT OR AN
EXEMPTION THEREFROM IS AVAILABLE.


 


(b)                                  Any
legend imposed or required by applicable state securities laws.


 


5.2                               In
the event that any Shares shall cease to be subject to the restrictions on
transfer set forth in this Agreement, Cerus shall, upon written request of the
holder thereof and at Cerus’ cost, promptly issue to such holder a new
certificate evidencing such Shares without the legend required by this
Section 5.


 


6.                                      RESALE
SHELF.


 


6.1                               Resale Shelf Registration Statement.  Within fourteen (14) days following the
Closing, Cerus shall prepare and file with the SEC, at its expense, a
registration statement on Form S-3 under the Securities Act with respect to the
registration of the Shares (the “Registration Statement”).  Cerus shall, and shall cause its accountants
and lawyers to, use its and their commercially reasonable efforts to cause the
Registration Statement to be declared effective by the SEC as promptly as
practicable after filing with the SEC.  
Cerus shall use its commercially reasonable efforts to keep the
Registration Statement effective and current, including through the filing of
any amendments and supplements that may be required under provisions of
applicable law, until the date on which all securities registered thereunder
may be resold within a ninety (90) day period without registration by reason of
Rule 144 under the Securities Act or any other rule of similar effect.


 


6.2                               Notice
of SEC Communications.  Cerus will
(a) advise MEDI Ventures in writing of the date of filing of the Registration
Statement with the SEC, (b) prior to effectiveness, advise MEDI Ventures in
writing of the expected date and time of the SEC’s declaration of effectiveness
and (c) promptly (and in any event within twenty-four (24) hours) following
notice to Cerus by the SEC that the Registration Statement has been declared
effective, advise MEDI Ventures of such effectiveness.  In addition, Cerus will promptly copy MEDI
Ventures on any related written correspondence to and from the SEC.


 


6.3                               Suspension.  Notwithstanding the foregoing, Cerus’
obligation to file or maintain the effectiveness of the Registration Statement
shall be suspended for a period of up to an aggregate of sixty (60) days
if Cerus furnishes to MEDI Ventures a certificate signed by an executive
officer of Cerus stating that in the good faith judgment of Cerus it would be
materially harmful to Cerus for such Registration Statement to be filed or
maintained effective at such time; provided, however, that in the event of such a suspension, the period
during which Cerus is required to maintain the suspended Registration Statement
effective shall automatically be extended by that number of days equal to the
period of suspension.


 


8



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


6.4                               Assignment
of Rights.  MEDI Ventures may, at its
election and upon notice to Cerus, at any time or from time to time, assign its
rights under this Section 6 in whole or in part, to any affiliate of MEDI
Ventures (including, without limitation, MedImmune).


 


6.5                               Indemnification.


 


(a)                                  Cerus.  Cerus agrees that in the event of any
registration of the Shares pursuant to this Section 6, Cerus shall
indemnify and hold harmless MEDI Ventures, its directors, officers, members,
partners, agents and affiliates and each other person or entity, if any, who
controls MEDI Ventures within the meaning of the Securities Act (including,
without limitation, MedImmune), against any losses, claims, damages or
liabilities, joint or several, to which MEDI Ventures or any such director,
officer, member, partner, agent or affiliate or controlling person or entity
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities, joint or several (or actions or
proceedings, whether commenced or threatened, in respect thereof), arise out of
or are based upon (i) any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, any preliminary or
final prospectus contained therein, or any amendment or supplement thereto,
(ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading, or
(iii) any violation by Cerus of any federal, state or common law rule or
regulation applicable to Cerus and relating to action required of or inaction
by Cerus in connection with any such Registration Statement, and Cerus shall
reimburse MEDI Ventures and each such director, officer, member, partner, agent
or affiliate and controlling person or entity for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided, that Cerus shall not be liable in any such case to
MEDI Ventures or any such director, officer, member, partner, agent, affiliate
or controlling person or entity to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, amendment or supplement in reliance
upon and in conformity with written information furnished to Cerus through an
instrument duly executed by or on behalf of MEDI Ventures, specifically stating
that it is for use in the preparation of such Registration Statement,
preliminary prospectus, final prospectus, amendment or supplement.  Such indemnity shall remain in full force
regardless of any investigation made by or on behalf of MEDI Ventures or any
such director, officer, member, partner, agent, affiliate or controlling person
or entity and shall survive the transfer of such securities by MEDI Ventures.


 


(b)                                  MEDI Ventures.  MEDI Ventures agrees that in the event of any
registration of the Shares pursuant to this Section 6, MEDI Ventures shall
indemnify and hold harmless Cerus, its directors, officers, members, partners,
agents and affiliates and each other person or entity, if any, who controls
Cerus within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which Cerus or any such director,
officer, member, partner, agent or affiliate or controlling person or entity
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities, joint or several (or actions or
proceedings, whether commenced or threatened, in respect thereof),


 


9



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary or final
prospectus contained therein, or any amendment or supplement thereto, or
(ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading, but only to
the extent such statement or alleged statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to Cerus through an instrument duly executed by or on behalf of MEDI Ventures,
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, amendment or supplement; provided, however, that the liability of MEDI Ventures under
this Section 6.5(b) shall be limited to the amount of proceeds (net of
expenses and underwriting discounts and commissions paid by MEDI Ventures)
received by MEDI Ventures in the offering giving rise to such liability.  Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of Cerus or any
such director, officer or controlling person or entity and shall survive the
transfer of such securities by MEDI Ventures.


 


(c)                                  Notices of Claims, Etc.  Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subsections of this Section 6.5, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of such
action or proceeding; provided, however,
that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under the preceding
subsections of this Section 6.5, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice, and
shall not relieve the indemnifying party from any liability that it may have to
the indemnified party otherwise than under this Section 6.5.  In case any such action or proceeding is
brought against an indemnified party, the indemnifying party shall be entitled
to participate therein and, unless in the opinion of outside counsel to the
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party; provided, however,
that if the defendants in any such action or proceeding include both the
indemnified party and the indemnifying party and if in the opinion of outside
counsel to the indemnified party there may be legal defenses available to such
indemnified party and/or other indemnified parties that are different from or
in addition to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to defend such
action or proceeding on behalf of such indemnified party or parties; provided, however, that the indemnifying party shall be
obligated to pay for only one counsel for all indemnified parties.  After notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof and
approval by the indemnified party of such counsel, which approval shall not be
unreasonably withheld, the indemnifying party shall not be liable to such
indemnified party for any legal expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation (unless the first proviso in the preceding sentence shall be
applicable).  No indemnifying party shall
be liable for any settlement of any action or proceeding effected without its
written consent.  No indemnifying party
shall, without the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an


 


10



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation.


 


(d)                                  Contribution.  If the indemnification provided for in this
Section 6.5 shall for any reason be held by a court to be unavailable to
an indemnified party under subsection (a) or (b) hereof in
respect of any loss, claim, damage or liability, or any action in respect
thereof, then, in lieu of the amount paid or payable under
subsection (a) or (b) hereof, the indemnified party and the
indemnifying party under subsection (a) or (b) hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating
the same), (i) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand, and the indemnified
party on the other, with respect to the statements or omissions which resulted
in such loss, claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations, or (i) if the allocation
provided by clause (i) above is not permitted by applicable law or if the
allocation provided in this clause (ii) provides a greater amount to the
indemnified party than clause (i) above, in such proportion as shall be
appropriate to reflect not only the relative fault but also the relative
benefits received by the indemnifying party and the indemnified party from the
offering of the securities covered by such registration statement as well as
any other relevant equitable considerations. 
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6.5(d) were to be determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the preceding sentence of
this Section 6.5(d).  No person or
entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.  In addition, no person or entity shall be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or claim effected without such person’s or entity’s consent, which
consent shall not be unreasonably withheld. 
Notwithstanding anything in this subsection (d) to the
contrary, no indemnifying party (other than Cerus) shall be required to
contribute any amount in excess of the proceeds (net of expenses and
underwriting discounts and commissions paid by such party) received by such
party from the sale of the Shares in the offering to which the losses, claims,
damages or liabilities of the indemnified parties relate.


 


(e)                                  Other Indemnification.  Indemnification and contribution similar to
that specified in the preceding subsections of this Section 6.5 (with
appropriate modifications) shall be given by Cerus and MEDI Ventures with
respect to any required registration or other qualification of securities under
any federal, state or blue sky law or regulation of any governmental authority
other than the Securities Act.  The
indemnification agreements contained in this Section 6.5 shall be in addition
to any other rights to indemnification or contribution that any indemnified
party may have pursuant to law or contract and shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any indemnified party and shall survive the transfer of any of the Shares by
MEDI Ventures.


 


(f)                                    Indemnification Payments.  The indemnification and contribution required
by this Section 6.5 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.


 


11



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


7.                                      CONDITIONS
TO CLOSING.


 


7.1                               Conditions
To MEDI Ventures’ Obligations At The Closing.  MEDI Ventures’ obligation to purchase the
Shares is subject to the satisfaction, at or prior to the Closing, of the
following conditions:


 


(a)                                  Representations
And Warranties True; Performance Of Obligations.  The representations and warranties made by
Cerus in Section 3 hereof shall be true and correct in all material
respects as of the Closing with the same force and effect as if they had been
made as of the Closing (except for representations and warranties that speak as
of a specific date, in which case they shall be true and correct in all
material respects as of such date), and Cerus shall have performed and complied
with all obligations and conditions herein required to be performed or complied
with by it on or prior to the closing.


 


(b)                                  SEC
Filings; Financial Statements.


 


(i)                                    All
statements, reports, schedules, forms and other documents required to have been
filed by Cerus with the Securities and Exchange Commission (“SEC”) during the
twelve (12) month period prior to the Closing Date (the “SEC Documents”) shall
have been so filed.  As of their
respective dates (or, if amended or superseded by a filing prior to the Closing
Date, then on the date of such amendment or superseding filing): (A) each of
the SEC Documents shall have complied in all material respects with the
applicable requirements of the Securities Act or the Exchange Act (as the case
may be); and (B) none of the SEC Documents shall have contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.


 


(ii)                                As
of their respective dates (or, if amended or superseded by a filing prior to
the Closing Date, then on the date of such amendment or superseding
filing):  the financial statements
(including any related notes) contained in the SEC Documents: (A) shall have
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC applicable
thereto; (B) shall have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
covered (except as may be indicated in the notes to such financial statements
or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC,
and except that the unaudited financial statements may not have contained
footnotes and were subject to normal and recurring year-end adjustments that
were not, or are not reasonably expected to be, individually or in the
aggregate, material in amount); and (C) shall have fairly presented in all
material respects the financial position of Cerus and the consolidated results
of operations and cash flows of Cerus for the periods covered thereby.


 


(c)                                  Legal
Investment.  At the time of the
Closing, the sale and issuance of the Shares shall be legally permitted by all
laws and regulations to which MEDI Ventures and Cerus are subject.


 


(d)                                  Consents,
Permits, And Waivers.  Cerus shall
have obtained any and all authorizations, approvals, consents, permits and
waivers necessary or appropriate for


 


12



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


consummation of
the transactions contemplated by this Agreement (except for such as may be
properly obtained subsequent to the Closing, and such items shall be effective
on and as of the Closing).


 


(e)                                  Certificate
of Good Standing.  Cerus shall have
obtained a Certificate of Good Standing from the Delaware Secretary of State
dated as of a recent date prior to the Closing.


 


(f)                                    Proceedings
and Documents.  All corporate and
other proceedings in connection with the transactions contemplated at the
Closing and all documents and instruments incident to such transactions shall
be reasonably satisfactory in form and substance to counsel to MEDI Ventures,
and counsel to MEDI Ventures shall have received all such counterpart originals
or certified or other copies of such documents as they may reasonably request.


 


(g)                                 Compliance
Certificate.  Cerus shall have
delivered to MEDI Ventures a Compliance Certificate, executed by the President
and the Chief Financial Officer of Cerus, dated the Closing Date, to the effect
that the conditions specified in subparagraphs (a), (b) and (d) of this
Section 7.1 have been satisfied.


 


(h)                                 Opinion
of Counsel.  MEDI Ventures shall have
received an opinion from counsel to Cerus, dated as of the Closing Date and
addressed to MEDI Ventures, substantially in the form set forth on Exhibit A
hereto.


 


(i)                                    No
Termination of License Agreement.  The
License Agreement shall not have terminated pursuant to Section 15 of the
License Agreement prior to the delivery of the Notice.


 


7.2                               Conditions
To Obligations Of Cerus.  Cerus’s
obligation to issue and sell the Shares at the Closing is subject to the
satisfaction, on or prior to the Closing, of the following conditions:


 


(a)                                  Representations
And Warranties True.  The
representations and warranties made by MEDI Ventures in Section 4 hereof
shall be true and correct in all material respects at the date of the Closing,
with the same force and effect as if they had been made on and as of said date.


 


(b)                                  Consents,
Permits, And Waivers.  MEDI Ventures
shall have obtained any and all authorizations, approvals, consents, permits
and waivers necessary or appropriate for consummation of the transactions
contemplated by this Agreement (except for such as may be properly obtained
subsequent to the Closing, and such items shall be effective on and as of the
Closing).


 


(c)                                  Proceedings
and Documents.  All corporate and
other proceedings in connection with the transactions contemplated at the
Closing and all documents and instruments incident to such transactions shall
be reasonably satisfactory in form and substance to counsel to Cerus, and
counsel to Cerus shall have received all such counterpart originals or
certified or other copies of such documents as they may reasonably request.


 


13



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


8.                                      MISCELLANEOUS.


 


8.1                               Termination.  This Agreement shall automatically terminate,
without any further action required by any party to this Agreement, in the
event the License Agreement is terminated pursuant to Section 15 of the
License Agreement; it being understood, that if
the License Agreement is terminated pursuant to Section 15.2 thereof, the
termination of this Agreement shall be deemed to occur on the date of the
notice delivered by MedImmune to Cerus pursuant to Section 15.2 of the
License Agreement; and it being further
understood that upon termination of the License Agreement, MEDI
Ventures shall have no obligation to purchase the Shares.


 


8.2                               Governing
Law.  This Agreement shall be
governed in all respects by the laws of the State of Delaware, without
reference to principles of conflict of laws or choice of laws..


 


8.3                               Survival.  Subject to Section 8.1 above, the representations,
warranties, covenants and agreements made herein shall survive any
investigation of the subject matter hereof made by or on behalf of Cerus or
MEDI Ventures and the closing of the transactions contemplated hereby.  All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
Cerus pursuant hereto in connection with the transactions contemplated hereby
shall be deemed to be representations and warranties by Cerus hereunder solely
as of the date of such certificate or instrument, except as expressly provided
otherwise in such certificate or instrument.


 


8.4                               Successors
And Assigns.  Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto and shall inure to the benefit of and be
enforceable by each person who shall be a holder of the Shares from time to
time; provided, however, that prior to the
receipt by Cerus of adequate written notice of the transfer of any Shares
specifying the full name and address of the transferee, Cerus may deem and
treat the person listed as the holder of such Shares in its records as the
absolute owner and holder of such shares for all purposes, the payment of any
dividends or any redemption price.


 


8.5                               Entire
Agreement.  This Agreement and the
License Agreement, and the other documents delivered pursuant hereto and
thereto, constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof and no party shall be
liable or bound to any other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein and therein.  Nothing in this Agreement or the License
Agreement, express or implied, is intended to confer upon any party, other than
the parties hereto, and their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided herein or therein.


 


8.6                               Severability.  In case any provision of the Agreement shall
be invalid, illegal or unenforceable, such provision shall, to the extent
practicable, be modified so as to make it valid, legal and enforceable and to
maintain as nearly as practicable the intent of the parties, and the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.


 


14



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


8.7                               Amendment And Waiver.


 


(a)                                  This
Agreement may be amended or modified only upon the written consent of the
parties hereto.


 


(b)                                  The
obligations of Cerus and the rights of the holder of the Shares under this
Agreement may be waived only with the written consent of the parties hereto.


 


(c)                                  Except
to the extent provided in this Section 8.7, neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated, except by a
statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.


 


(d)                                  Any
amendment or waiver effected in accordance with this Section 8.7 shall be
binding upon any future holder of some or all of the shares.


 


8.8                               Delays
Or Omissions.  It is agreed that no
delay or omission to exercise any right, power or remedy accruing to MEDI
Ventures or Cerus, upon any breach, default or noncompliance of Cerus or MEDI
Ventures, as the case may be, under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such breach,
default or noncompliance, or any acquiescence therein, or of or in any similar
breach, default or noncompliance thereafter occurring. It is further agreed
that any waiver, permit, consent or approval of any kind or character on either
of Cerus’s or MEDI Ventures’ part of any breach, default or noncompliance under
this Agreement or any waiver on either of Cerus’s or MEDI Ventures’ part of any
provisions or conditions of this Agreement must be in writing and shall be
effective only to the extent specifically set forth in such writing.  All remedies under this Agreement or
otherwise afforded to Cerus or MEDI Ventures, shall be cumulative and not
alternative.  Upon receipt of the Notice,
MEDI Ventures’ obligation to purchase the Shares as specified herein and to pay
the purchase price therefor determined in accordance with Section 1.1,
shall be subject only to the conditions set forth in Section 7.1 of this
Agreement.  Upon satisfaction of the
conditions set forth in Section 7.1, MEDI Ventures’ obligation to purchase
the Shares and pay the purchase price therefor in accordance with
Section 1.1, shall become absolute and unconditional.


 


8.9                               Notices.  All notices and other communications required
or permitted hereunder shall be in writing and shall be deemed effectively
given and received (a) upon personal delivery, (b) on the fifth day following
mailing sent by registered or certified mail, return receipt requested, postage
prepaid, (c) upon confirmed delivery by means of a nationally recognized
overnight courier service or (d) upon transmission of facsimile (with
telephonic notice) addressed:  (i) if to
MEDI Ventures, at MEDI Ventures’ address as set forth on the signature page
hereto, or at such other address as MEDI Ventures shall have furnished to Cerus
in writing in accordance with the provisions of this Section 8.9, to the
attention of its chief financial officer or (ii) if to Cerus, at its
address as set forth on the signature page hereto, or at such other address as
Cerus shall have furnished to MEDI Ventures in writing in accordance with the
provisions of this Section 8.9, to the attention of its chief legal
counsel.


 


8.10                        Expenses.  Cerus shall pay all costs and expenses that
it incurs with respect to the negotiation, execution, delivery and performance
of the Agreement, and MEDI Ventures shall


 


15



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


pay all costs and
expenses that it incurs with respect to the negotiation, execution, delivery
and performance of this Agreement.


 


8.11                        Attorneys’
Fees.  If legal action is brought to
enforce or interpret this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys’ fees and legal costs in connection therewith.


 


8.12                        Titles And
Subtitles.  The titles of the
paragraphs and subparagraphs of the Agreement are for convenience of reference
only and are not to be considered in construing this Agreement.


 


8.13                        Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.


 


8.14                        Broker’s
Fees.  Each party hereto represents
and warrants that no agent, broker, investment banker, person or firm acting on
behalf of or under the authority of such party hereto is or will be entitled to
any broker’s or finder’s fee or any other commission directly or indirectly in
connection with the transactions contemplated herein.  Each party hereto further agrees to indemnify
each other party for any claims, losses or expenses incurred by such other
party as a result of the representation in this Section 8.14 being untrue.


 


8.15                        Subsequent
Consents, Permits and Waivers.  Cerus
shall obtain promptly after the Closing all authorizations, approvals, consents,
permits and waivers that are necessary or applicable for consummation of the
transactions contemplated by this Agreement and that were not obtained prior to
the closing because they may be properly obtained subsequent to the Closing.


 


16



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


IN WITNESS WHEREOF,
the parties hereto have executed this agreement as of the date set forth in the
first paragraph hereof.


 


 


	
  CERUS CORPORATION

  	
   

  
	
  2525 Stanwell Drive

  	
   

  
	
  Concord, CA  94520

  	
   

  
	Telephone:  (925) 288-6000
	 

	
  Facsimile:  (925) 288-6001

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MEDIMMUNE VENTURES, INC.

  	
   

  
	
  One MedImmune Way

  	
   

  
	
  Gaithersburg, MD  20878

  	
   

  
	Telephone:  (301) 398-0000
	 

	
  Facsimile:  (301) 398-9000

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


17



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


1.2                                 Exhibit
A


 


1.3                                 Form
Of Opinion


 


(i)                                     Cerus has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its property and conduct
its business as described in the SEC Documents.


 


(ii)                                  The
Shares have been duly authorized and, when issued, delivered and paid for at
the Closing, the Shares will be validly issued, fully paid and nonassessable;
and the holders of outstanding shares of the capital stock of Cerus are not
entitled to preemptive or, to such counsel’s knowledge, similar rights to
subscribe for the Shares.


 


(iii)                               This Agreement has been duly authorized,
executed and delivered by Cerus, and, assuming due authorization, execution and
delivery of this Agreement by the other party or parties thereto, the Agreement
constitutes the legal, valid and binding obligation of Cerus, enforceable
against Cerus in accordance with its terms, except as enforcement thereof may
be limited by applicable bankruptcy, insolvency, reorganization,
rehabilitation, moratorium or other similar laws relating to or affecting the
enforcement of creditors’ rights generally and by general principles of equity
regardless of whether such enforceability is sought in a proceeding at law or
in equity and subject further to the possible unenforceability of
indemnification and contribution provisions in the event of a violation of
securities laws.


 


(iv)                              Neither the issuance or sale of the Shares by
Cerus nor the compliance by Cerus with all of the provisions of the Agreement
will conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under the provisions of the Certificate
of Incorporation or By-laws of Cerus or any applicable statute or any order,
rule or regulation known to such counsel of any court or governmental agency or
body of the United States of America or the State of Delaware having
jurisdiction over Cerus, except such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities laws
as to which no opinion need be expressed and except for performance of the
indemnification and contribution provisions of the Agreement as to which no
opinion need be expressed.


 


(v)                                 No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body of the United States of America having jurisdiction over Cerus is required
to be obtained by Cerus for the issue and sale of the Shares or the
consummation by Cerus of its obligations under this Agreement, except such
consents, approvals, authorizations, registrations or qualifications as may be
required under the Securities Act, state securities or Blue Sky laws (as to which
federal and state securities or Blue Sky laws we express no opinion) for the
execution, delivery and performance by Cerus of this Agreement.


 


A-1



















 


[***] = Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to
Rule 24b-2 of the Securities and Exchange act of 1934, as amended.


 


(vi)                              On the basis of and in reliance on the
accuracy and completeness of the representations and warranties of MEDI
Ventures, the offer and sale of the Shares pursuant to this agreement are
exempt from the requirements of Section 5 of the Securities Act; however,
no opinion need be expressed as to when and under what circumstances Shares
acquired by MEDI Ventures upon original issuance as contemplated by this
Agreement may be reoffered or resold without registration under the Securities
Act.


 


(vii)                           Cerus is not an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.


 



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


APPENDIX E                                                                       Research Plan


 



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


APPENDIX F                                                                       Excluded Sublicensees


 


[***]


 



















 


[***] = Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with the Securities
and Exchange Commission pursuant to Rule 24b-2 of the Securities and Exchange
act of 1934, as amended.


 


Appendix G


 


Cerus Materials


 


1.                                       [***]


 


2.                                      [***].


 


3.                                      [***].


 


4.                                       [***].